BUKAR V THE HON. MINISTER, FEDERAL MINISTRY OF HEALTH GARKI, ABUJA & ANOR

BUKAR V THE HON. MINISTER, FEDERAL MINISTRY OF HEALTH GARKI, ABUJA & ANOR


IN THE COURT OF APPEAL
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS

ON WEDNESDAY, 23RD MAY, 2018


Suit No: CA/J/210/2012

CITATION:

Before Their Lordships:

UCHECHUKWU ONYEMENAM, JCA

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA


BETWEEN

YUSUF BUKAR
(APPELLANT)

AND

THE HON. MINISTER, FEDERAL MINISTRY OF HEALTH GARKI, ABUJA
BOARD OF MANAGEMENT, UNIVERSITY OF MAIDUGURI TEACHING HOSPITAL
(RESPONDENTS)


PRONOUNCEMENT


A. CONSTITUTIONAL LAW
1. Enforcement of Fundamental Human Rights – Meaning and nature of fundamental rights

A fundamental right is a right guaranteed in the Nigerian Constitution. It is a right which every citizen is entitled to by reason of being a human being unless if a person suffers any of the disabilities set out in the Constitution. Odogu Vs. A.G. Federation (2000) 2 HRLRA 82 at 102; Fajemirokun Vs. Comm. Bank (Nig.) Ltd. (2009) 21 WRN 1. Fundamental rights stand above the ordinary laws of the land. Ransome Kuti Vs. A.G. Federation (1985) 2 NWLR (PT. 6) 211. There are therefore constitutional provisions and rules of procedures contrived for the enforcement of those rights specifically entrenched in the Constitution. These rights are so jealously guarded that it is only when a party’s right that has been so breached are such that are well clearly protected by the Constitution that the Constitutional provision can be exploited to remedy whatever wrong the party would have suffered. Tukur Vs. Gongola State Government (1989) 4 NWLR (PT. 117) 517; Nwokorie Vs. Opara (1999) 1 NWLR (PT. 587) 389; Ejefor Vs. Okeke (2000) 7 NWLR (PT. 665) 363. Per ONYEMENAM, JCA. read in context

2. Statutory Interpretation – Interpretation of Order 11 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009  

The decision in Jack Vs. University Of Agriculture Makurdi (Supra), was decided under The Fundamental Rights (Enforcement Procedure) Rules, 1979. The instant rule is The Fundamental Rights (Enforcement Procedure) Rules, 2009 pursuant to Section 46(3) of the Constitution of the Federal Republic of Nigeria, 1999. The commencement and mode of application of enforcement of fundamental rights actions have been stipulated in the 2009 Rules. For the cause of action [to be] enforceable under the referred Rules, it is thus provided:
Order 11 Rule 1

1. “Any person who alleges that any of the fundamental Rights provided for in the Constitution or the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress:

Provided that where the infringement occurs in a State which has no Division of the Federal High Court, the Division of the Federal High Court administratively responsible for the State shall have jurisdiction. Form No. 1 in the Appendix may be used as appropriate.”

By this provision there is no qualification or restriction on the nature of persons who may seek to enforce the infraction of their rights under Chapter IV of the Constitution. Sections 36 (1) and 46 (1) and (2) gave unlimited access to the Court for the enforcement of the rights guaranteed to all manner of people who allege that their rights have been violated except that a condition precedent to the exercise of the Court’s jurisdiction is that the enforcement of a fundamental right shall be the main claim and not an accessory claim.

Enforcement of Fundamental Right – Mode of enforcement of fundamental right

As for the mode of application, the 2009 Rules provides that: Order 11 Rule 2

2. “An application for the enforcement of the Fundamental Right may be made by any originating process mode accepted by the Court which shall subject to the provisions of these Rules, lie without leave of Court.”

From the above, an Applicant seeking to enforce his right under Chapter IV of the 1999 Constitution has the option to come by way of Motion, Originating Summons or by any other form of commencement of an action accepted by the Court. This is also in consonance with Order 3 Rule 1 of the Federal High Court Civil Procedure Rules 2009.

Enforcement of  Fundamental Rights – When an action can be properly brought under the fundamental rights enforcement rules

On whether the action is one that come under The Fundamental Rights (Enforcement Procedure) Rules. The fundamental rights procedure rules enshrined in Section 46(1) of the Constitution can only be invoked when the main or principal complaint in an action is the enforcement or securing of the enforcement of a fundamental right is in issue. It is only then, the Court could exercise jurisdiction to entertain the application under the Fundamental Rights (Enforcement Procedure) Rules. Also where the infringed fundamental right is not charged in a Court or Tribunal established by law but in a domestic or standing ad hoc committee of a non-judicial body, the infringement of Section 36(1) of the Constitution or any other fundamental right cannot be fought under the Fundamental Rights (Enforcement Procedure) Rules. Emeka Vs. Okoroafor (2017) LPELR – 41738 (SC); Borno Radio Television Corporation Vs. Egbuonu (1991) 2 NWLR (PT. 171) 81. It is also important to note that it is the reliefs sought rather than the facts in support that determine whether an application was rightly commenced under the Enforcement Rules and consequently the jurisdiction of the Court. Emeka Vs. Okoroafor (2017) LPELR – 41738 (SC); UNILORIN & Anor Vs. Oluwadare (2006) LPELR – 3417 (SC).

Enforcement of Fundamental Human Right – The principle that the enforcement of the fundamental right must be the main relief and not merely ancillary

To determine what the principal complaint in an action is, it is necessary to ascertain whether the grant of a particular relief will assuage the Applicant and settle the dispute…In essence, what I am laboring to arrive at, is that where the main or principal claim is not the enforcement or securing the Enforcement of Fundamental Human Rights, the jurisdiction of the Court cannot be properly exercised because the action will be incompetent. Madukolu Vs. Nkemdilim (1962) 2 SCNLR 341; UNILORIN & Anor Vs. Oluwadare (2006) LPELR – 3417 (SC) Tukur Vs. Government Of Taraba State (1997) 6 NWLR (PT. 510) 549 AT 574 – 575. To firm the position, I have held above and in answer to the next issue which still stems on whether the action brought before the trial Court could be maintained under the enforcement rules, I rely extensively on the decision of the apex Court Per Kekere-Ekun, JSC in Emeka Vs. Okoroafor & Ors (Supra).

Enforcement of Fundamental Rights – Whether a complaint of infringement of the right of fair hearing at an administrative or ad-ho hearing can form the basis for a complaint under the Fundamental Right (Enforcement Procedure) Rules, 2009

By Section 36 of the 1999 Constitution, all administrative bodies are bound to observe the rules of natural justice and fairness in their decisions, which affect the rights and obligations of citizens. Bakare Vs. L.S.C.S.C. (1992) 8 NWLR (PT. 262) 641 @ 699 H. Howbeit, when the need arises to seek to enforce a fundamental right to fair hearing provided for under Chapter IV of the Constitution, the alleged violation must be in respect of proceedings before a Court or Tribunal established by law and not before domestic or standing ad-hoc Tribunals. Emeka Vs. Okoroafor & Ors. (Supra); Ekunola Vs. C.B.N. (2013) 15 NWLR (1377) 224; Bakare Vs. L.S.C.S.C. (Supra). It is important to bring to the fore, that when a Court in exercise of its power of judicial review declares the decision of an administrative body invalid or ultra vires and void, it is not saying or implying that the acts of the administrative body are unconstitutional in terms of Section 36 of the 1999 Constitution, but that such acts offend against the rules of natural Justice of audi alteram partem or nemo judex in causa sua, or offends against the rules of fairness, or otherwise offends the rule of natural justice. All these are in the realm of administrative and not constitutional law. The distinctive factor is that Section 36 deals with judicial bodies and does not extend to bodies not judicial but all the same deciding on rights and obligations of individuals. So, while the Appellant herein may complain that he was not treated fairly by the Respondents by initiating an action accordingly through the relevant originating process, his remedy does not lie in the enforcement of his fundamental right under Chapter IV of the 1999 Constitution (as amended) since the 2nd Respondent is not a Court or Tribunal established by law. Accordingly, having found that the Appellant’s principal complaint is as per his relief 6 to wit; his reinstatement to office and payment of all accrued salaries, benefits, entitlements, perquisites of office, etc. covering all material times, the fact that the learned counsel in drafting the reliefs masqueraded them with the enforcement of the Appellants fundamental rights is immaterial. I hold that Appellant’s principal complaint is not a constitutional one. Peterside Vs. I.M.B. (1993) 2 NWLR (PT. 278) 712 @ 718 719. Even when the Appellant’s complaint is found to be constitutional, the fact that the 2nd Respondent that allegedly violated his right under Section 36 of the 1999 Constitution is not a judicial body, but an administrative body, Fundamental Rights Enforcement Procedure was inappropriate in the circumstances of this case. This no doubt robbed on the competence of the trial Court to hear the suit. The proceedings therefore amounted to a nullity. Madukolu Vs. Nkemdilim (1962) 2 SCNLR 341; UNILORIN & Anor Vs. Oluwadare (2006) LPELR – 3417 (SC); Tukur Vs. Government Of Taraba State (1997) 6 NWLR (Pt. 510) 549 AT 574-575.  Per ONYEMENAM, JCA. read in context

3. Enforcement of Fundamental Human Rights – The principle that the enforcement of the fundamental right must be the main relief and not merely ancillary

The position of the law as regards whether or not a matter falls or is properly that which belongs to the enforcement of fundamental rights procedure is as clearly stated by my learned brother. In support of the conclusion reached, I refer to the firm position of the apex Court in the case of Sea Trucks Nigeria Ltd V. Anigboro (2001) LPELR-SC 120 per KARIBI WHYTE JSC (as he then was) thus:-

“The correct approach in a claim for the enforcement of fundamental rights is to examine the relief sought; the grounds for such relief and the facts relied upon. Where the facts relied upon disclose a breach of the fundamental right of the applicant as the basis of the claim, here there is a redress through the enforcement of such rights through the Fundamental Rights (Enforcement Procedure) Rules, 1979. However, where the alleged breach of right is ancillary or incidental to the main grievance or complaint, it is incompetent to proceed under the rules, this is because the right, if any, violated is not synonymous with the substantive claim which is the subject-matter of the action…” Per WILLIAMS-DAWODU, JCA. read in context

B. LIMITATION LAW
4. Limitation Period – When does time begin to run for the purpose of limitation law

Section 2(a) of Public Officers’ Protection Act provides thus:-

“2. Where any 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 of 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-
Limitation of time:

a. 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.”

Let me quickly note that where however, a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers’ Protection Act. A.G Adamawa State & Ors Vs. Ag Federation (2014) LPELR – 23221 (SC). Also by Order 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, an application for the enforcement of Fundamental Right is not affected by any limitation Statute whatsoever. Had the instant case been found to be an action for the enforcement of Fundamental Right the Public Officers’ Protection Act will not be applicable. The issue here is the effect of Exhibit E on when time began to run. Exhibit E is a letter issued by the Respondents affirming the Appellant’s dismissal, after considering his appeal. The main dispute therefore is when time began to run to ascertain whether the Appellant’s action was statute barred. It is correct as agreed by all the parties that the Appellant was handed his dismissal letter dated 13th June, 2011 meaning 3 months for him to sue would have extinguished on 14th September, 2011. However, after the said letter, the Appellant wrote to the Respondents for a review and mitigation of his dismissal. The Respondents acknowledged and acted on the Appellant’s appeal letter and came up with a decision which is Exhibit E. Exhibit E dated 27th September, 2011, affirmed the Appellant’s dismissal. The bone of contention is when time began to run for the purposes of determining the status of the Appellant’s action. The law is quite settled that for the purpose of limitation law, time begins to run when there is in existence a person who can sue and another who can be sued and when all the facts have happened, which are material to be proved to enable the plaintiff to succeed. Asaboro & Anor Vs. Pan Ocean Oil Corporation (Nig.) Ltd & Anor (2017) LPELR- 41558 (SC); Jallco Ltd. Vs. Owoniboys Technical Services Ltd.(1995) 4 NWLR (PT. 391) 534; NPA Vs. Ajobi (2006) LPELR-2029 (SC); Fadare & Ors Vs. Attorney General Of Oyo State VOL.113, N.S.C.C. 62 AT 80; (1982) 4 S.C. 1 AT 25. This is to say, time will start to run when all the facts which constitute the plaintiff’s cause of action arose. The question that need be answered herein therefore is, with the facts and circumstances of this case, when did a person who could sue and another who could be sued emerge in the instant case or when did all the facts which constituted the Appellant’s cause of action arose. The term ’cause of action’ is defined by Jowitt’s Dictionary of English Law as –

“The facts or combination of facts which give rise to a right to sue … The phrase is of importance chiefly with reference to the Limitations Act 1939 and the jurisdiction of Courts. Thus, time begins to run when the cause of action arises (unless postponed or revived by reason of fraud, mistake, acknowledgement etc….”

In Egbe V. Adefarasin (NO.2) (1987) 1 NWLR (PT. 47) 1 at Page 20 OPUTA, JSC in relation to the definition of this term ’cause of action’ said-

“Now let us examine the meaning of cause of action. It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts, which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief.”

NPA VS. Lotus Plastics Ltd. (2006) 2 MJSC 41; (2005) LPELR – 2028 (SC); Nasiru Bello & Ors. Vs. Attorney- General Of Oyo State (1986) 5 NWLR (PT. 45) 828 AT 876; Afolayan Vs. Ogunrinde (1990) 1 NWLR (PT.127) 369 AT 373; Akilu Vs. Fawehinmi (NO. 2) (1989) 2 NWLR (PT.102) 122; Sodipo Vs. Lemminkainen Oy (1992) 8 NWLR (PT.258) 229 and P.N. Udoh Trading Co. Ltd. Vs. Abere (2001) 11 NWLR (PT.723) 114 AT 135.

A careless and hasty perusal of the facts on record will lead to jumping to the conclusion that the person who could sue and who could be sued existed at the date when the Respondents issued the dismissal letter to the Appellant. This seems correct to the extent that at the point when the dismissal letter was handed over to the Appellant, a cause of action arose. However, the position changed when the Respondents acknowledged the Appellant’s appeal for mitigation. The act of the Respondents in reconsidering the dismissal of the Appellant reignited and reopened the facts constituting the Appellant’s cause of action thereby making his cause of action incomplete before Exhibit E. The acknowledgement of the Appellant’s appeal letter for mitigation of his dismissal postponed Exhibit D (the dismissal letter) till the determination of the appeal by the Respondents. As at the time the Appellant’s appeal was pending before the Respondent’s Administrative body, the cause of action abated because at that point the Appellant did not have complete facts that could constitute a complaint that could be determined by law Court. The Respondents by acknowledging the Appellant’s appeal, Exhibit D was abated. Accordingly, all the facts or combination of facts the Appellant required to adduce to be entitled to any relief ceased to exist by reason of the acknowledgement of the appeal for review. Put differently, all the facts that could constitute the Appellant’s complaint or cause of action only accrued at the time the Respondent refused his appeal by issuing Exhibit E, in which case the time began to run when Exhibit E was made which was on 27th September, 2017. In other words, the act of the Respondents did not cease with the issuance of the dismissal letter (Exhibit D) but continued to run during the period the Appellant’s appeal was receiving attention by the Respondents and ceased when they made Exhibit E. For this therefore, I hold that the Appellant’s action was not statute barred having been filed 3 months next from the cessation of the act complained of. Per ONYEMENAM, JCA. read in context


LEAD JUDGMENT DELIVERED BY ONYEMENAM, JCA


The appeal is against the decision of the Federal High Court, Maiduguri Division delivered by Gafai, J. on 15th June, 2012 in Suit No: FHC/MG/CS/48/2011; wherein the learned trial Judge upheld the Respondents Preliminary objection holding that the Appellant’s Suit is incompetent, the same which robs the Court of its jurisdiction.

The Appellant had at the trial Court by his writ of summons and statement of claim dated and filed 19th December, 2011, sought the following reliefs:

“1. A declaration that the failure of the 2nd Defendant to notify the Plaintiff of the allegation of fraudulent payment of salary and/or afford the Plaintiff an opportunity to cross-examine the petitioners that set in motion the machinery leading to the purported dismissal of the Plaintiff from the service of the 2nd Defendant, and/or to even be afforded a hearing before the 2nd Defendant’s petitions and complaints committee, is a denial of the Plaintiff’s right to fair-hearing.

2. A declaration that the allegation of falsification of payment in favour of the Plaintiff was baseless, null and void, and of no effect whatsoever in that the Plaintiff was not notified formally of same by the 2nd Defendant.

3. A declaration that the Plaintiff’s reaction to the allegation of falsification of payment in Plaintiff’s favour was null and void and of no effect whatsoever as the condition precedent to same had not been met.

4. A declaration that the letter of dismissal from service of the 2nd Defendant dated 13th day of June, 2011 served on the Plaintiff, is null and void and of no effect whatsoever in that it was a product of the denial of the right to fair hearing to the Plaintiff, which right is a fundamental right and constitutionally protected.

5. An order setting aside the purported petition to the 2nd Defendant’s Board dated 18th day of March, 2011; the Plaintiff’s purported anticipatory reaction to the said purported petition, dated 14th day of May, 2011; the Plaintiff’s letter to the Chairman, Investigation Committee, University of Maiduguri Teaching Hospital for leniency dated 25th day of May, 2011, and the letter of dismissal from service of the 2nd Defendant dated 13th day of June, 2011.

6. An order reinstating the Plaintiff to office and the payment of all accrued salaries, benefits, entitlements, perquisites of office, etc, covering all material times, to the Plaintiff.”

Based on the Appellant’s writ of summons, the Statement of claim and deposition on oath, the Respondents simultaneously inter-alia filed preliminary objections challenging the jurisdiction of the trial Court to entertain the suit. The Respondents’ grounds for the objections were that;

1. The suit is incompetent the same having been filed outside the mandatory 3 months period within which such action could be filed pursuant to Section 2(a) of the Public Officers Protection Act.

2. The action having been extinguished by reason of no. 1 above, there was no cause of action to ground the suit.

The Appellant opposed the Respondents’ contention alleging that his suit is hinged on Fundamental Right Enforcement of the Appellant’s right to fair hearing. It was the Appellant’s argument that since the action hinged on the Fundamental Right (Enforcement Procedure) Rules, the said action is not affected by the provisions of Section 2(a) of the Public Officers Protection Act. He submitted that his suit is not time bound and therefore competent.

He further argued that contrary to the stance of the Respondents that cause of action in this suit started to run on 13th June, 2011 when the Appellant was issued with a dismissal letter, that since the decision on the appeal against his dismissal was communicated to him on 27th September, 2011, that the cause of action started on this later date.

After evaluating the arguments of both Parties, the trial Court ruled in favour of the Respondents. It is for this reason that the Appellant filed his notice of appeal on 3rd September, 2012. The appeal when ripe was heard on 26th February, 20 . On said date, the Appellant and his counsel were absent from court although served with the hearing notice to the satisfaction of the Court.

Mr. C. I. Ozoemelam for 1st Respondent, moved the Court to invoke Order 19 Rule 9(4) of the Court of Appeal Rules, 2016 to deem the Appellant’s brief argued. H. M. Garga Esq. for 2nd Respondent did not oppose the application whereupon, the Court granted the application as prayed. The Appellant’s brief filed 19th June, 2013 but deemed properly filed and served on 25th March, 2014 was deemed duly argued. Thereafter Ozoemelam Esq., adopted and relied on the 1st Respondent’s brief filed 30th May, 2017 but deemed properly filed and served on 31st May, 2017 in urging the Court to dismiss the appeal. Equally, Mr. Garga adopted and relied on the 2nd Respondent’s brief filed 2nd June, 2014 but deemed properly filed and served 4th May, 2017 in urging the Court to dismiss the appeal. After this, judgment was reserved.

In their respective briefs each of the learned counsel for the respective parties distilled 2 issues for the determination of the appeal. The respective 2 issues are the same in meaning and are as follows:
Appellant’s 2 issues:

1. “Whether, by a holistic construction of paragraphs 4-13, 15-17and the first relief sought, this Suit cannot be one for the enforcement of Appellant’s right to fair hearing.

2. Whether this Suit has been caught up by Section 2(a) of the Public Officers (Protection) Act, in the light of Exhibit E.” 1st Respondent’s 2 issues

1. “Whether, by a holistic construction of the entire suit as constituted and reliefs sought thereto, this suit be one for the enforcement of Appellant’s right to fair hearing.

2. Whether this suit has been caught up by Section 2(a) of the Public Officer’s (Protection) Act.” 2nd Respondent’s 2 issues

1. “Whether the plaintiff’s claim before the trial Court was one for wrongful dismissal or for the enforcement or securing the enforcement of his fundamental human right.

2. Whether the plaintiff’s suit which was filed three months after the date of accrual of cause of action is not caught up by the Public officers Protection Act.”

Having examined the manner the issues reproduced above were phrased, I adopt issue 1 of the 2nd Respondent and issue 2 of the Appellant to determine the appeal because the adopted two issues are better framed than their counterparts.

The two issues for ease of reading are:

1. “Whether the plaintiff’s claim before the trial Court was one for wrongful dismissal or for the enforcement or securing the enforcement of his fundamental human right.

2. Whether this Suit has been caught up by Section 2(a) of the Public Officers (Protection) Act, in the light of Exhibit “E”.”

ARGUMENTS ON ISSUE 1

In the Appellant’s brief settled by Mr. Muhammad Etubi, he submitted that this Suit is one for the enforcement of the Appellant’s fundamental right to fair hearing. He referred to Exhibit A – the petition against him which he alleged was never served on him at all material times. He contended that it is in consonance with the principles and tenets of the right to fair hearing, that the Appellant be brought face-to-face with the petitioners for purposes of cross-examination and establishing the veracity of the allegation in respect thereof. He referred to and reproduced Section 36 (1) and (6)(d) of the 1999 Constitution (as amended), which makes it mandatory for the Appellant to either personally or through his counsel examine the witnesses against him. The learned counsel submitted that these omissions cannot be waived as they form the bedrock of the Appellant’s right to fair-hearing. He urged the Court to so hold.

On the form to be adopted in the enforcement of one’s fundamental rights, Mr. Etubi submitted that there is no particular form. He referred to Or. 3, R. 1 of the Federal High Court (Civil Procedure) Rules 2009; Or. 2 R. 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009, to submit that one may employ any originating process accepted by the Court to secure the enforcement of any person’s fundamental rights where such has been, is being or is likely to be infringed. He further submitted that the procedure adopted by the Appellant herein is borne out of the provisions of both the Rules of the trial Court and the Fundamental Rights (Enforcement Procedure) Rules 2009.

He urged the Court to resolve this issue in favour of the

Appellant.

In response, Mr. Ozoemelam learned counsel for the 1st Respondent submitted that a cursory consideration of the claims of the Appellant against the Respondent at the trial Court as contained in his Writ of Summons and statement of claim reveals that the main claim or prayer of the Appellant is his reinstatement to office and the payment of all accrued benefits, entitlement, prerequisites of his office etc., covering all material times for unlawful termination of his appointment. He contended that this is evidenced by the mode of institution of his action which was via the writ of summons as opposed to the Enforcement of Fundamental Right Procedure.

He urged the Court to hold that the trial Court rightly pointed out, “the above relief is the fulcrum, the principal and the ultimate aim of this suit” any other purported claim thereto was an auxiliary claim aimed at equipping the Appellant to reap from their indolence and consequence illegality. He further urged the Court to resolve the issue in favour of the Respondents.

Dr. Bukar, learned counsel for the 2nd Respondent’s submission is on the same note with the 1st Respondent’s submissions. He contended further that wrongful dismissal and threatened contravention of a Fundamental Human Rights (Enforcement Procedure) Rules, belong to different classes of action for which appropriate procedure must be adopted in each class of action. He relied on: Jack Vs. Unam (2004) 5 NWLR (Pt. 865) 208. He further contended that for the Appellant’s suit to qualify as one for enforcement of fundamental human right, same must not only be initiated vide the Fundamental Human Rights (Enforcement Procedure) Rules, 2009 but it must also in addition, make the enforcement or securing the enforcement of the Appellant’s fundamental right the principal or main thrust of his application. He cited: WAEC Vs. Akinkunmi (2008) 9 NWLR Pt. 1091 P.151; Egbuonu Vs. Borno Radio And Television (1997-1998) ALL NLR P.63; Eronini Vs. Eronini (2013) 14 NWLR Pt.1373 P. 32 @55 Paras. D-F.

The learned counsel urged the Court to resolve the issue in favour of the Respondents.

RESOLUTION OF ISSUE 1

A fundamental right is a right guaranteed in the Nigerian Constitution. It is a right which every citizen is entitled to by reason of being a human being unless if a person suffers any of the disabilities set out in the Constitution. Odogu Vs. A.G. Federation (2000) 2 HRLRA 82 at 102; Fajemirokun Vs. Comm. Bank (Nig.) Ltd. (2009) 21 WRN 1. Fundamental rights stand above the ordinary laws of the land. Ransome Kuti Vs. A.G. Federation (1985) 2 NWLR (Pt. 6) 211. There are therefore constitutional provisions and rules of procedures contrived for the enforcement of those rights specifically entrenched in the Constitution. These rights are so jealously guarded that it is only when a party’s right that has been so breached are such that are well clearly protected by the Constitution that the Constitutional provision can be exploited to remedy whatever wrong the party would have suffered. Tukur Vs. Gongola State Government (1989) 4 NWLR (Pt. 117) 517; Nwokorie Vs. Opara (1999) 1 NWLR (Pt. 587) 389; Ejefor Vs. Okeke (2000) 7 NWLR (Pt. 665) 363.

In the instant case, by a writ of summons, it is the Appellant’s contention that because the 2nd Respondent did not serve him with the petition that was written against him neither was he given the opportunity to cross examine those who witnessed against him by writing the petition before his dismissal; his fundamental right to fair hearing enshrined in Section 36 of the Constitution was infringed upon making his action come under Fundamental Rights (Enforcement Procedure) Rules. The Respondents on the other hand contended that the Appellant’s action was wrongly brought under the fundamental right enforcement rules because the enforcement of fundamental right was an ancillary claim as the main relief was the re instatement of the Appellant. The Respondents also submitted that the mode of commencement of the action by the Appellant removed it from the class of actions that come under the Fundamental Rights (Enforcement Procedure) Rules. For this contention, the 2nd Respondent relied on Jack Vs. University Of Agriculture Makurdi (2004) 5 NWLR (Pt. 865) 208; (2004) LPELR 1587 (SC).

The decision in Jack Vs . University Of Agriculture Makurdi (Supra), was decided under The Fundamental Rights (Enforcement Procedure) Rules, 1979. The instant rule is The Fundamental Rights (Enforcement Procedure) Rules, 2009 pursuant to Section 46(3) of the Constitution of the Federal Republic of Nigeria, 1999. The commencement and mode of application of enforcement of fundamental rights actions have been stipulated in the 2009 Rules.

For the cause of action for enforceable under the referred Rules, it is thus provided:

Order II Rule 1

1. “Any person who alleges that any of the fundamental Rights provided for in the Constitution or the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress:

Provided that where the infringement occurs in a State which has no Division of the Federal High Court, the Division of the Federal High Court administratively responsible for the State shall have jurisdiction. From No. 1 in the Appendix may be used as appropriate.”

By this provision there is no qualification or restriction on the nature of persons who may seek to enforce the infraction of their rights under Chapter IV of the Constitution. Sections 36 (1) and 46 (1) and (2) gave unlimited access to the Court for the enforcement of the rights guaranteed to all manner of people who allege that their rights have been violated except that a condition precedent to the exercise of the Court’s jurisdiction is that the enforcement of a fundamental right shall be the main claim and not an accessory claim.

As for the mode of application, the 2009 Rules provides that:

Order II Rule 2

2. “An application for the enforcement of the Fundamental Right may be made by any originating process mode accepted by the Court which shall subject to the provisions of these Rules, lie without leave of Court.”

From the above, an Applicant seeking to enforce his right under Chapter IV of the 1999 Constitution has the option to come by way of Motion, Originating Summons or by any other form of commencement of an action accepted by the Court. This is also in consonance with Order 3 Rule 1 of the Federal High Court Civil Procedure Rules 2009. In the instant appeal, the trial Court did not complain nor reject the mode of application or Originating process the Appellant approached it to enforce his alleged contravened right under Section 36 of the Constitution. That the trial Court held that the Appellant’s suit was not an action under The Fundamental Rights (Enforcement Procedure) Rules, does not imply that it did not accept the mode of application. I therefore do not agree with the learned counsel for the 2nd Respondent’s submission at paragraph XIII at page 6 of his brief. I hold that the mode of application which is in conformity with the Order 2 (2) of The Fundamental Rights (Enforcement Procedure) Rules 2009 and Order 3 Rule 1 of the Federal High Court Civil Procedure Rules 2009; having not been rejected by the trial Court was accepted by it as proper originating process for the commencement of the Appellant’s action for the enforcement of his right guaranteed by the Constitution.

On whether the action is one that come under The Fundamental Rights (Enforcement Procedure) Rules. The fundamental rights procedure rules enshrined in Section 46(1) of the Constitution can only be invoked when the main or principal complaint in an action is the enforcement or securing of the enforcement of a fundamental right is in issue. It is only then, the Court could exercise jurisdiction to entertain the application under the Fundamental Rights (Enforcement Procedure) Rules.

Also where the infringed fundamental right is not charged in a Court or Tribunal established by law but in a domestic or standing ad hoc committee of a non-judicial body, the infringement of Section 36(1) of the Constitution or any other fundamental right cannot be fought under the Fundamental Rights (Enforcement Procedure) Rules.

Emeka Vs. Okoroafor (2017) LPELR – 41738 (SC); Borno Radio Television Corporation Vs. Egbuonu (1991) 2 NWLR (PT. 171) 81. It is also important to note that it is the reliefs sought rather than the facts in support that determine whether an application was rightly commenced under the Enforcement Rules and consequently the jurisdiction of the Court. Emeka Vs. Okoroafor (2017) LPELR – 1738 (SC); Unilorin & Anor Vs. Oluwadare (2006) LPELR – 3417 (SC). The question herein therefore is whether enforcement of Fundamental Right or securing the enforcement thereof, formed the basis of the Appellant’s claim as presented to the trial Court. As stated above, the answer to the question lies with the reliefs sought by the Appellant at the trial Court.

The Appellant’s claims are as set out at page 10 of the record which had been reproduced above. Upon a thorough examination of the claims particularly claims 1 and 4, the enforcement of the Appellant’s rights under Section 36 of the Constitution could not be said to form a principal part of his application in my view. The enforcement of the Appellant’s right guaranteed by Section 36 of the Constitution was merely an accessory claim to his main claim as per claim 6 on record. To determine what the principal complaint in an action is, it is necessary to ascertain whether the grant of a particular relief will assuage the Applicant and settle the dispute. Applying this to the case at hand, it is quite clear that the enforcement of the right of the Appellant guaranteed by Section 36 of the 1999 Constitution and as per his reliefs 1 and 4 to wit: serving him with the petition written against him before summoning him before the board and giving him an opportunity to cross examine those who wrote the petition, without more will not bring to finality nor actualize the Appellant’s objective of bringing this action. Rather, denying him the rights he has claimed in reliefs 1 and 4 of his claim at page 10 of the record but granting him relief 6 of his claim to wit: an order reinstating him to office and payment of all accrued salaries, benefits, entitlements, perquisites of office, etc. covering all material times, will definitely bring the Appellant’s action to an end without the feeling of injustice of the failure to serve him with the petition or allow him cross examine the petitioners. I am therefore of the strong view that the claim of infringement of the Appellant’s right under Section 36 of the Constitution in the action that led to this appeal was a mere accessory or ancillary to the main claim which I hold is relief 6. Accordingly, the action at the trial Court did not qualify to come under The Fundamental Rights (Enforcement Procedure) Rules 2009. In essence, what I am laboring to arrive at, is that where the main or principal claim is not the enforcement or securing the Enforcement of Fundamental Human Rights, the jurisdiction of the Court cannot be properly exercised because the action will be incompetent. Madukolu Vs. Nkemdilim (1962) 2 SCNLR 341; Unilorin & Anor Vs. Oluwadare (2006) LPELR – 3417 (SC); Tukur Vs. Government Of Taraba State (1997) 6 NWLR (Pt. 510) 549 at 574 – 575.

To firm the position, I have held above and in answer to the next issue which still stems on whether the action brought before the trial Court could be maintained under the enforcement rules. I rely extensively on the decision of the apex Court Per Kekere-Ekun, JSC in Emeka Vs. Okoroafor & Ors (Supra). By Section 36 of the 1999 Constitution, all administrative bodies are bound to observe the rules of natural justice and fairness in their decisions, which affect the rights and obligations of citizens.

Bakare Vs. L.S.C.S.C. (1992) 8 NWLR (Pt. 262) 641 @ 699 H. Howbeit, when the need arises to seek to enforce a fundamental right to fair hearing provided for under Chapter IV of the Constitution, the alleged violation must be in respect of proceedings before a Court or Tribunal established by law and not before domestic or standing ad-hoc Tribunals. Emeka Vs. Okoroafor & Ors. (Supra); Ekuno A Vs. C.B.N. (2013) 15 NWLR (1377) 224; Bakare Vs. L.S.C.S.C. (supra). It is important to bring to the fore, that when a Court in exercise of its power of judicial review declares the decision of an administrative body invalid or ultra vires and void, it is not saying or implying that the acts of the administrative body are unconstitutional in terms of Section 36 of the 1999 Constitution, but that such acts offend against the rules of natural Justice of audi alteram partem or nemo judex in causa sua, or offends against the rules of fairness, or otherwise offends the rule of natural justice. All these are in the realm of administrative and not constitutional law. The distinctive factor is that Section 36 deals with judicial bodies and does not extend to bodies not judicial but all the same deciding on rights and obligations of individuals. So, while the Appellant herein may complain that he was not treated fairly by the Respondents by initiating an action accordingly through the relevant originating process, his remedy does not lie in the enforcement of his fundamental right under Chapter IV of the 1999 Constitution (as amended) since the 2nd Respondent is not a Court or Tribunal established by law.

Accordingly, having found that the Appellant’s principal complaint is as per his relief 6 to wit; his reinstatement to office and payment of all accrued salaries, benefits, entitlements, perquisites of office, etc. covering all material times, the fact that the learned counsel in drafting the reliefs masqueraded them with the enforcement of the Appellants fundamental rights is immaterial. I hold that Appellant’s principal complaint is not a constitutional one.

Peterside Vs. I.M.B. (1993) 2 NWLR (Pt. 278) 712 @ 718 719. Even when the Appellant’s complaint is found to be constitutional, the fact that the 2nd Respondent that allegedly violated his right under Section 36 of the 1999 Constitution is not a judicial body, but an administrative body, Fundamental Rights Enforcement Procedure was inappropriate in the circumstances of this case. This no doubt robbed on the competence of the trial Court to hear the suit. The proceedings therefore amounted to a nullity.

Madukolu Vs. Nkemdilim (1962) 2 SCNLR 341; Unilorin & Anor Vs. Oluwadare (2006) LPELR – 3417 (SC); Tukur Vs. Government Of Taraba State (1997) 6 NWLR (Pt. 510) 549 at 574-575.

For what I have said above, I resolve this issue in favour of the Respondents.

SUBMISSIONS ON ISSUE 2

The learned counsel for the Appellant, Mr. Etubi submitted that even as this Suit is one challenging the dismissal of the Appellant, it does not come under Section 2(a) Public Officers (Protection) Act. He contended that the Act cannot purport to take away the right to enforce a fundamental right. He relied on Appeal No. CA/K/295/2010 between Muhammed & 3 Ors. Vs. Abu, Zaria & Anor. (unreported decision of the Court of Appeal, Kaduna Division, delivered on 10/07/2012).

He further submitted that Exhibit E revived the Appellant’s cause of action, which cause of action would have been extinguished on 14th September, 2011. He referred to: NPA Vs. Lotus Plastics Ltd. (2006) 2 MJSC 41.

Mr. Etubi urged the Court to resolve issue 2 in favour of the Appellant.

In response, Mr. Ozoemelam for the 1st Respondent Submitted that the implication of failure of the Appellant to file its suit within 3 months of the act complained of is that the suit has become statute barred as its cause of action has been rendered invalid and null and void. He argued that the purported acts perpetrated by the Respondents that brought about this suit were acts done in pursuance or in execution or intended execution of public duty hence within the parlance or purview of Section 2(a) of the Public Officer (Protection) Act. He added that under the limitation of action laws which includes the Public Officers (Protection) Act, time begins to run the moment the cause of action arose or accrued. For the meaning of cause of action. He cited: NPA Vs. Ajobi (2006) 27 NSCQR 889; Uwazuruonye Vs. Governor, Imo State (2013) 52.3 NSCQR 1219; Shell Vs. X. M. Federal Ltd. (2006) 27 NSCQR 127; Mohammed Sani Vs. President FRN (240) NWLR PART 1198, 153 @ 171.

The learned counsel contended that in this case, the cause of action arose on 13th June, 2011 and was caught by the Limitation Act on 12th of September, 2011 hence rendering the action of 19th December, 2011 incompetent, null and void as the action became statute barred by the operation of the Limitation Act (Public Officers (Protection)) Act. He referred to: Elabanjo Vs. Dawodu (2006) 27 NSCQR 318; and urged the Court to resolve the issue in favour of the Respondents.

On the part of the 2nd Respondent, Dr. Bukar submitted alongside the submissions of the 1st Respondent’s counsel.

He added that the contention by the Appellant that Exhibit “E” revived his cause of action is to say the least preposterous. He argued that Exhibit “E” did not suspend, modify or alter in any way the letter of dismissal dated 13th June, 2011. That if anything, Exhibit “E” reinforced the Appellant’s dismissal in Exhibit “D” by stating that the Appellant’s dismissal still stands. He submitted that the learned trial Judge was right in holding that the Appellant’s appeal to mitigate his dismissal did not stop time from running insisting that negotiation, appeal for reinstatement, or Exhibit “E” does not make a difference as time is of decisive essence in limitation law. He cited: Eboigbe V. NNPC (1994) 5NWLR Pt. 347 P. 649; Ogba V. B.D.U, Jos Branch (2001) 3 NWLR Pt. 701 P. 579.

He therefore urged the Court to resolve the issue against the Appellant.

RESOLUTION OF ISSUE 2

Section 2(a) of Public Officers’ Protection Act provides thus:-

“2. Where any 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 of 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-

Limitation of time:

a. 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.”

Let me quickly note that where however, a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers’ Protection Act. A.G Adamawa State & Ors Vs. Ag Federation (2014) LPELR – 23221 (SC). Also by Order 3 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, an application for the enforcement of Fundamental Right is not affected by any limitation Statute whatsoever. Had the instant case been found to be an action for the enforcement of Fundamental Right the Public Officers’ Protection Act will not be applicable.

The issue here is the effect of Exhibit E on when time began to run. Exhibit E is a letter issued by the Respondents affirming the Appellant’s dismissal, after considering his appeal. The main dispute therefore is when time began to run to ascertain whether the Appellant’s action was statute barred. It is correct as agreed by all the parties that the Appellant was handed his dismissal letter dated 13th June, 2011 meaning 3 months for him to sue would have extinguished on 14th September, 2011. However, after the said letter, the Appellant wrote to the Respondents for a review and mitigation of his dismissal. The Respondents acknowledged and acted on the Appellant’s appeal letter and came up with a decision which is Exhibit E. Exhibit E dated 27th September, 2011, affirmed the Appellant’s dismissal. The bone of contention is when time began to run for the purposes of determining the status of the Appellant’s action.

The law is quite settled that for the purpose of limitation law, time begins to run when there is in existence a person who can sue and another who can be sued and when all the facts have happened, which are material to be proved to enable the plaintiff to succeed.

Asaboro & Anor Vs. Pan Ocean Oil Corporation (Nig.) Ltd & Anor (2017) LPELR-41558 (SC); Jallco Ltd. Vs. Owoniboys Technical Services Ltd. (1995) 4 NWLR (Pt. 391) 534; NPA Vs. Ajobi (2006) LPELR–2029 (SC); Fadare & Ors Vs. Attorney General Of Oyo State) Vol.113, N.S.C.C. 62 at 80; (1982) 4 S.C. 1 at 25. This is to say, time will start to run when all the facts which constitute the plaintiff’s cause of action arose. The question that need be answered herein therefore is, with the facts and circumstances of this case, when did a person who could sue and another who could be sued emerge in the instant case or when did all the facts which constituted the Appellant’s cause of action arose. The term ’cause of action’ is defined by Jowitt’s Dictionary of English Law as –

“The facts or combination of facts which give rise to a right to sue … The phrase is of importance chiefly with reference to the Limitations Act 1939 and the jurisdiction of Courts. Thus, time begins to run when the cause of action arises (unless postponed or revived by reason of fraud, mistake, acknowledgement etc….”

In Egbe V. Adefarasin (No.2) (1987) 1 NWLR (Pt. 47) 1 at Page 20 OPUTA, JSC in relation to the definition of this term ’cause of action’ said-

“Now let us examine the meaning of cause of action. It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts, which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief.”

NPA Vs. Lotus Plastics Ltd. (2006) 2 MJSC 41; (2005) LPELR – 2028 (SC); Nasiru Bello & Ors. Vs. Attorney- General Of Oyo State (1986) 5 NWLR (Pt. 45) 828 at 876; Afolayan Vs. Ogunrinde (1990) 1 NWLR (Pt. 27) 369 at 373; Akilu Vs. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122; Sodipo Vs. Lemminkainen Oyo (1992) 8 NWLR (Pt. 258) 229 and P.N. Udoh Trading Co. Ltd. Vs. Abere (2001) 11 NWLR (Pt.723) 114 at 135.

A careless and hasty perusal of the facts on record will lead to jumping to the conclusion that the person who could sue and who could be sued existed at the date when the Respondents issued the dismissal letter to the Appellant. This seems correct to the extent that at the point when the dismissal letter was handed over to the Appellant, a cause of action arose.

However, the position changed when the Respondents acknowledged the Appellant’s appeal for mitigation. The act of the Respondents in reconsidering the dismissal of the Appellant reignited and reopened the facts constituting the Appellant’s cause of action thereby making his cause of action incomplete before Exhibit E. The acknowledgement of the Appellant’s appeal letter for mitigation of his dismissal postponed Exhibit D (the dismissal letter) till the determination of the appeal by the Respondents. As at the time the Appellant’s appeal was pending before the Respondent’s Administrative body, the cause of action abated because at that point the Appellant did not have complete facts that could constitute a complaint that could be determined by law Court. The Respondents by acknowledging the Appellant’s appeal, Exhibit D was abated. Accordingly, all the facts or combination of facts the Appellant required to adduce to be entitled to any relief ceased to exist by reason of the acknowledgement of the appeal for review. Put differently, all the facts that could constitute the Appellant’s complaint or cause of action only accrued at the time the Respondent refused his appeal by issuing Exhibit E, in which case the time began to run when Exhibit E was made which was on 27th September, 2017. In other words, the act of the Respondents did not cease with the issuance of the dismissal letter (Exhibit D) but continued to run during the period the Appellant’s appeal was receiving attention by the Respondents and ceased when they made Exhibit E. For this therefore, I hold that the Appellant’s action was not statute barred having been filed 3 months next from the cessation of the act complained of.

I resolve issue 2 in favour of the Appellant.

Consequently, as while resolving issue 1, I held that the Appellant’s action founded on The Fundamental Rights (Enforcement Procedure) Rules, is incompetent and the entire proceedings of the trial Court a nullity, I therefore hold that this appeal lacks merit and is hereby dismissed. The application for the enforcement of the Appellant’s fundamental rights in Suit No. FHC/MG/CS/48/2011 is hereby struck out for being incompetent. It is on the above premise I affirm the decision of the Federal High Court, Maiduguri Division delivered on 15th June, 2012, that Suit No. FHC/MG/CS/48/2011, is incompetent. There shall be no order as to costs.

ABIRU, JCA

I have had the privilege of reading the lead judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA.

His Lordship has considered and resolved the issues in contention in this appeal. I agree with the conclusion reached therein but I am unable agree with a part of the reasoning. I am compelled to write dissenting opinion on that part of the reasoning.

I adopt the facts of the case as contained in the lead judgment as well as the two issues for determination identified therein. The issues are:

1. Whether the Appellant’s claim before the lower Court was one for wrongful dismissal or for the enforcement or the securing of the enforcement of his fundamental rights.

ii. Whether the suit was caught up by Section 2(a) of the Public Officers (protection) Act, in the light of Exhibit E.

I agree entirely with the resolution of the first issue for determination in the lead judgment. It is without question that the essence of the claims of the Appellant before the lower Court was aimed at contesting his dismissal by the Respondents and not for the enforcement of fundamental rights. The action of the Appellant is thus not outside the application of Limitation of Action provisions. It is with the resolution of the second issue for determination that I depart from the reasoning in the lead Judgment.

The second issue for determination touched on the issue of limitation of action. Limitation of action is a statutory defence. The general rule is that where there is a right there is a remedy; that is to say, where there is a cause of action, there is a remedy. However, the legislature has prescribed certain periods of limitation for instituting certain actions and some of such statutes are the Limitations Laws of the different States of Nigeria, and including of the Federal Capital Territory, Abuja. This is based on public policy that there should be an end to litigation and that state demands should be suppressed for it would be unfair to a person to allow claims to be made upon him after a long period during which he may have lost the evidence formerly available to him necessary to rebut the claim – Shell Petroleum Development Corporation Vs Farah (1995) 3 NWLR (Pt 382) 148, Muhammed Vs Military Administrator, Plateau State (2001) 16 NWLR (Pt 740) 524.

Where a statute of limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute barred, a claimant 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 the time laid down by the limitation law for instituting such an action has elapsed – Odubeko Vs Fowler (1993) 7 NWLR (Pt. 308) 637, Shell Petroluem Development Corporation Vs Farah supra, PN Udoh Trading Co. Ltd Vs Abere (2001) 11 NWLR (Pt. 723) 114, Muhammed Vs Military Administrator, Plateau State supra, Sulgrave Holdings Ine Cs Federal Government of Nigeria (2012) 17 NWLR(Pt 1329) 309.

The relevant limitation law provision in the present case is Section 2 (a) of the Public Officers Protection Act Cap 379, Laws of Federation of Nigeria 1990 and it reads:

“2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution of any 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 act, law, duty or authority, the following provisions shall have effect –

(a) 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 damages or injury within three months next after ceasing thereof … “

Now, it is not in dispute that claims of the nature presented by the Appellant in the present case come within the classes of claims covered by the above provision. This point has been considered and determined by the Courts in various cases – see for example, Eboigbe Vs NNPC (1994) 6 NWLR (Pt. 347) 649, Nigeria National Petroleum Corporation Vs AbdulRahman (2006) 12 NWLR (Pt. 993) 202, Ayoronmi Vs NNPC (2010) 8 NWLR (pt. 1197) 616 and Kasim Vs NNPC (2013) 10 NWLR (Pt 1361) 46. There is thus no need to re-invent the will on the point. The question that arises is – is the provision applicable to bar the claims of the Appellant in this present case.

The period of time prescribed by a statute of limitation begins to run the moment a cause of action accrues to the person entitled to it. Thus, when dealing with a limitation statute, it is of utmost importance to ascertain the exact date of accrual of a cause of action.

A cause of action consists of every fact which would be necessary for a claimant to prove, if traversed, in order to support his right to judgment. 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 relief or remedy being sought. It is every fact which is material to be proved to entitle the claimant to succeed or all those things necessary to give a right to relief in law or equity – Ogoh Vs ENPEE Industries Ltd (2004) 17 NWLR (Pt. 903) 449, Williams Vs Williams (2008) 10 NWLR (Pt. 1095) 364, Duzu Vs Yunusa (2010) 10 NWLR (Pt. 1201) 80 and Nigerian Ports Authority Vs Beecham Pharmaceutical PTE Ltd (2012) 18 NWLR (Pt 1333) 454.

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 Vs Uwechia (1975) 2 SC 213, Adeosun Vs Jibesin (2001) 11 NWLR (Pt. 734) 290, National Electric Power Authority Vs Olagunju (2005) 3 NWLR (pt. 913) 602, Bakare Vs Nigerian Railway Corporation (2007) 17 NWLR (Pt. 1064) 606. 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) PIc Vs Malumfashi (1995) 7 NWLR (pt. 406) 246, Adekoya Vs Federal Housing Authority (2008) 11 NWLR (pt. 1099) 539. In Adimora Vs Ajufo (1988) 3 NWLR (pt.80) 1 at 17, Oputa, JSC, put the issue thus:

“In dealing with limitation of actions, one of the most fundamental questions to answer is: when did the cause of action accrue? This crucial question is also the most difficult, as the answer will depend on the surrounding circumstances of each particular case. But may be a collateral question has to be answered first – what is meant by cause of action? In its best definition, it consists of every fact which it would be necessary for the plaintiff to prove, if traversed in order to support his right to judgment …..

When these facts have occurred and provided there are in existence a competent plaintiff and a competent defendant, a cause of action is said to accrue to the plaintiff because he can then prosecute an action effectively. Thus, accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his action.”

The cause of action prosecuted by the Appellant in this case is his alleged wrongful dismissal from the service of the University of Maiduguri Teaching Hospital by the Respondents. Applying the above stated principles to the facts of this case as laid out in the lead judgment, it incontestable that this cause of action of the Appellant crystallized and became actionable upon his receipt of the letter of the Respondent dated the 13th of June, 2011, Exhibit D, and it was not in contest that the Appellant received the letter on the 14th of June, 2011. The Respondent informed the Appellant, in part, in the letter that:

“… That you are summarily dismissed from the service of the University of Maiduguri Teaching Hospital. … “

The case of the Appellant was that after the receipt of the letter, he made oral and written requests, pleas and demands for the Respondents to re-consider their position and rescind his dismissal but that the Respondent refused to change its position and that the Respondent wrote him another letter dated the 27th of September, 2011, Exhibit E. The crucial point for consideration on this issue for determination is what effect, if any, did the pleas, requests and demands of the Appellant and the contents of letter, Exhibit E, have on the running of time on the cause of action that crystallized in the Appellant in June 2011.

The principles on the running of time in limitation of action matters have been stated and restated by the Courts. In computing time when statute of limitation begins to run, the day the cause of action arose as a rule is excluded and the day of filing the action is included – Mkpedem Vs Udo (2000) 9 WLR (Pt. 673) 631, Adesule Vs Mayowa (2011) 13 NWLR (Pt. 1263) 135. The period of limitation begins to run from the date on which the cause of action accrued. It is immaterial that a party was absent from jurisdiction or that there was no Court within the jurisdiction to entertain the claim. Similarly, illiteracy will also not avail a plaintiff because ignorance of the law is no excuse – Aremo II Vs Adekanye (2000) 2 NWLR (Pt. 644) 257, UTA French Airlines Vs Williams (2000) 14 NWLR (Pt. 6 7) 271, Akibu Vs Azeez (2003) 5 NWLR (Pt. 814) 643.

Once a cause of action is complete, the issue of its suspension will not arise. The fact that the claimant made subsequent pleas, protests and wrote letters to upturn the act that led to the cause of action does not affect the time of accrual of the cause of action. In fact, it is scraggy reasoning to hold on the belief that the appeals, petitions, pleas and protests of a plaintiff will have the effect of suspending the date of accrual of the cause of action – Humbe Vs Attorney General, Benue State (2000) NWLR (Pt 649) 419. The law does not, however, prohibit parties to a dispute from engaging in negotiation for the purpose of settling the dispute but, except where as a result there is what can be reasonably regarded as a settlement of a dispute or admission of liability on the part of the defendant, the limitation time continues to run despite the negotiation. The rationale for this is that parties cannot by conduct or consent add to or subtract from the contents of a statute – Union Bank of Nigeria PIc Vs Ozigi (1991) 2 NWLR (pt. 176) 677, Eboigbe Vs NNPC (1994) 5 NWLR (Pt. 347) 660, Adebanjo Vs Ogun State Sports Council (2005) 54 WRN 17 , National Bank of Nigeria Ltd Vs Arison Trading & Engineering Co. Ltd (2006) 16 NWLR (pt. 1005) 210, Shell Petroleum Development Company of Nigeria Ltd Vs Ejebu (2011) 17 NWLR (Pt 1276) 324.

Where there has been an admission of liability during negotiation and all that remains is the fulfillment of the agreement, the law is that the right of action is revived – Nwadiaro Vs Shell Petroleum Dev. Co. Nig. Ltd. (1990) 5 NWLR (Pt 150) 322, Nigeria Social Insurance Trust Fund Management Board Vs Klifco Nig. Ltd (2010) 13 NWLR (Pt. 1211) 307. Such admission of liability creates or establishes a fresh cause and revives a right of action which might have already become statute barred – Shell Petroleum Development Company of Nigeria Ltd Vs Ejebu (Supra.)

What all these mean in the instant case is that the oral and written requests, pleas and demands for the Respondent will only affect the running of time against the cause of action of the Appellant that crystallized in June 2011 if the Respondent’s letter, Exhibit E, was an admission of liability, an agreement to rescind the dismissal of the Appellant, but not otherwise.

Now, an admission of liability must be in writing and signed by the party that is liable. It must be unconditional and unequivocal but it is not required to give the exact specifics of the liability admitted. What will constitute an admission of liability to revive a right of action is a matter of fact depending on each case and it usually depends on the construction placed by the Court on the words used. In determining whether the words used constitute an admission of liability, the relevant question is what the words used by the party admitting liability mean – Thadani Vs National Bank of Nigeria (1972) 1 SC 105, Olaogun Enterprises Ltd Vs Saeby Jernstoberi & Anor (1992) 4 NWLR (Pt. 235) 361, Nigeria Social Insurance Trust Fund Management Board Vs Klifco Nig. Ltd supra, Shell Petroleum Development Company of Nigeria Ltd Vs Ejebu supra.

Exhbit E read thus:

“The Board of Management at its 30th meeting held on 22nd September, 2011 considered your appeal for reinstatement on the case of dismissal from the services of the University of Maiduguri Teaching Hospital, a decision which was taken at its 29th meeting held on 9th June, 2011 and resolved that your dismissal still stands.”

Reading through the contents of the letter, by no principle of interpretation, can they be said to amount to an admission of liability or an agreement by the Respondent to rescind the dismissal of the Appellant. All that the Respondent did in Exhibit E was to reaffirm its position as contained in the earlier letter. Thus, Exhibit E did not serve to revive the cause of action of the Appellant and/or elongate the period of limitation; it did not in any way affect the running of the limitation period on the cause of action of the Appellant which crystallized in June 2011 – Nigeria National Petroleum Corporation Vs AbdulRahman (2006) 12 NWLR (Pt. 993) 202, Kasim Vs NNPC (2013) 10 NWLR(pt. 1361) 46.

The three month period within which the Appellant was to file his action elapsed on the 14th of September, 2011. The present action was not commenced until the 19th of December 2011. It was caught by the provisions of Section 2 (a) of the Public Officers Protection Act Cap 379, Laws of Federation of Nigeria 1990. I thus resolve the second issue for determination against the Appellant.

It is based on the resolution of the second issue for determination against the Appellant that I find no merit in this appeal. I too hereby dismiss the appeal and affirm the decision contained in the Ruling of the Federal High Court sitting in Maiduguri delivered in Suit No FHC/MG/CS/48/2011 by Honorable Justice I. B. Gafai on the 15rh of June, 2012. I abide by the order on costs in the lead judgment.

WILLIAMS-DAWODU, JCA

I had the privilege and opportunity to read the draft of the lead Judgment delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA, and I agree entirely with the reasoning and conclusion reached therein.

The position of the law as regards whether or not a matter falls or is properly that which belongs to the enforcement of fundamental rights procedure is as clearly stated by my learned brother. In support of the conclusion reached, I refer to the firm position of the apex Court in the case of Sea Trucks Nigeria Ltd V. Anigboro (2001) LPELR-SC 120 per KARIBI WHYTE JSC (as he then was) thus:-

“The correct approach in a claim for the enforcement of fundamental rights is to examine the relief sought; the grounds for such relief and the facts relied upon.

Where the facts relied upon disclose a breach of the fundamental right of the applicant as the basis of the claim, here there is a redress through the enforcement of such rights through the Fundamental Rights (Enforcement Procedure) Rules, 1979.

However, where the alleged breach of right is ancillary or incidental to the main grievance or complaint, it is incompetent to proceed under the rules, this is because the right, if any, violated is not synonymous with the substantive claim which is the subject-matter of the action…”

In the instant appeal, it was quite clear and as concluded in the lead judgment that enforcement of the Appellant’s right per se as was being pursued, which was mere accessory and ancillary in my considered view, could not resolve the substantive claim which was quite different.

In the result, I also dismiss the appeal as lacking merit and accordingly affirm the decision of the Court below delivered on June 15th, 2012. I make no order as to costs.

Appearances:

Appellant Counsel absent For Appellant(s)

C. I. Ozoemelam, Esq. for 1st Respondent.

H.M. Garga, Esq. for 2nd Respondent For Respondent(s)