[Action] – [Limitation of Action] – [How Determined]
ISSUES FOR DETERMINATION:
Whether the case was caught by the provision of section 2(a) of the Public Officers Protection Act, Cap. 379, Laws of the Federation, 1990.
FACTS:
The appellant, an erstwhile Professor in the Department of Psychology, and a member of the Senate of the respondent was suspended by a letter dated the 22nd day of September 2004 after unpublished result of the Respondent’s Diploma program was found with a Diploma student who alleged that the Appellant had given it to him. After the appellant’s suspension, the Senate of the Respondent set up an Investigation Panel which recommended the termination of the appellant’s appointment to the senate. The senate of the respondent during its meeting of 26/1/2005, adopted the report and recommended the Appellant to the Council of the Respondent for termination.
On the 9th day of February 2005, the appellant took out a writ at the Federal High Court, Enugu Division challenging the action of the respondent. The respondent herein filed a Notice of Preliminary Objection challenging the validity of the suit on the grounds that same was statute barred by virtue of Section 2 of the Public Officers Protection Act, Cap. 379 of the Laws of the Federation of Nigeria 1990 and contended that the appellant herein was suspended from office on the 22nd day of September 2004 and he commenced the instant suit on the 9th day of February 2005, more than three months of his suspension
The trial court dismissed the Preliminary objection, the respondent herein, dissatisfied, filed an appeal to the Court of Appeal. In determining the appeal, the Court of Appeal, noted that it was clear that the respondent was suspended on 22/9/2004 while the respondent’s suit was commenced on 9/2/2005, over four (4) months after the cause of action, in clear violation of the Public Officers Protection Act. Dissatisfied, the appellant herein appealed to the Supreme Court which allowed the appeal and set aside the decision of the court below.
HELD:
On the exceptions to limitation law:
The law of limitation of action recognises some exceptions, one of which is where there has been a continuance of damage or injury, a fresh cause of action arises from time to time, and as often as the damage or injury is caused.
On definition of termination:
Termination is defined as a final step in the progressive employee discipline process where his or her employment with the employer is permanently severed.
NIGERIAN CASES REFERRED TO IN THE JUDGEMENT:
- Adesola v. Abidoye (1999) 14 NWLR (Pt. 637) 28
- Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1
- Ajayi v. Military Administrator Ondo State (1997) 5NWLR (Pt. 504) 237
- Ambode v. Ministry of Internal Affairs (2004) 14 NWLR (Pt. 894) 506
- Anigboro v. Sea Trucks (Nig.) Ltd. (1995) 6 NWLR (Pt. 399)35
- Aremo II v. Adekanye (2004) 13 NWLR (Pt. 891) 572
- Atoyebi v. Govt., Oyo State (1994) 5 NWLR (Pt. 344) 290
- Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523
- Ibrahim v. J.S.C., Kaduna State (1998) 14 NWLR (Pt. 584) 1
- Ikweki v. Ebele (2005) 11 NWLR (Pt. 936) 397
- Koya v. UBA (1997) 1 NWLR (Pt. 481) 251
- Lagos City Council v. Ogunbiyi (1969) 2 SCNLR 94
- Longe v. F.B.N. Plc (2010) 6 NWLR (Pt. 1189) 1
- Nwankwere v. Adewunmi (1966) 1 SCNLR 356
- Obi v. INEC (2007) 11 NWLR (Pt. 1046) 560
- Offoboche v. Ogoja Local Govt. (2001) 16 NWLR (Pt. 739) 458
- Owie v. Ighiwi (2005) 5 NWLR (Pt. 917) 184
- Texaco Panama Inc. v. Shell P.D.C.N. Ltd. (2002) 5 NWLR (Pt. 759) 209
- Uhunwangho v. Okojie (1989) 5 NWLR (Pt. 122) 471
- Unical v. Esiaga (1997) 4 NWLR (Pt. 502) 719
- University of Calabar v. Esiaga (1997) 4 NWLR (Pt. 502) 719
- Yare v. N.S.W.&I.C. (2013) 12 NWLR (Pt. 1367) 173
FOREIGN CASE REFERRED TO IN THE JUDGMENT:
- Boston Sea Fishing & Ice Co. v. Ansell (1886-90) All ER 65
NIGERIAN STATUTES REFERRED TO IN THE JUDGMENT:
- Nnamdi Azikiwe University Act, No. 34 of 1992, S 16
- Public Officers Protection Act, Cap. 379, Laws of the Federation of Nigeria, 1990, S. 2(a)
BOOK REFERRED TO IN THE JUDGMENT:
Black’s Law Dictionary, 9th Ed.
FULL JUDGMENT
AUGIE, J.S.C. (Delivering the Leading Judgment):
From the facts of this case, it is clear that the respondent was suspended on 22/9/2004 while he commenced his suit on 9/2/2005 a period of over 4 months after the cause of action. This is in clear violation of the Public Officers Protection Act. There is no basis for the argument of the learned counsel for the respondent that the suspension was a continuing act, which was not caught by the Public Officers Protection Act. The suspension started on a definite date, which was the date of the cause of action for all intents and purposes. The respondent had a duty to ensure that he acted timeously if he was to hold the appellant to account for his suspension. See the case of Ambode v. Ministry of internal Affairs (2004) 4 NWLR (Pt. 894) 506 in which the Court of Appeal held that the cause of action accrued on the 31st of August 1999 when the letter of retirement was served on the appellant and not on the 16th of May 2000 when his effort to negotiate with his employer became fruitless.
The appellant has appealed to this court with a notice of appeal containing three grounds of appeal, and he formulated one issue for determination therefrom in his brief of argument, which was adopted by the respondent in its own brief of argument, that is:
“Whether the present case is caught by the provision of section 2(A) of the Public Officers Protection Act. Cap, 379 Laws of the Federation. 1990, (sic) ought the court below have dismissed the action instead of striking it out even if the provision of section2(A) Public Officers Protection Act supra applies to the case, and was the court below also justified in pronouncing on the issue of the interlocutory order of injunction made by the trial Judge after having already declared that the action was statute barred and incompetent.”
The learned Justices of the Court of Appeal erred in law when they held:
“From the facts of this case it is clear that the respondent was suspended on 22/9/2004 while he commenced his suit on 9/2/2005 a period of over 4 months after the cause of action. This is in clear violation of the Public Officers Protection Act. There is no basis for the argument that the suspension was a continuing act, which was not caught by the Public Officers Protection Act. The suspension started on a definite date, which was the date of the cause of action for all intents and purposes. The respondent had a duty to ensure that he acted timeously if he was to hold the appellant to account for his suspension.”
To determine whether an action is statute-barred, the court looks at the plaintiff’s writ of summons and statement of claim alleging when the wrong was committed by the defendant. In other words, when the cause of action accrued and situate with that and situate that with when when the writ of summons was filed in court. If the date of filing is beyond that permitted by the statute, then the action is statute-barred. In this case, the two courts below gave different answers to the question of when the cause of action accrued, and the issue now is which of the courts provided the right answers to the question.
In the trial court’s view, the cause of action was continuous and it finally enured when the said Senate Panel on three cases recommended for the termination of the appellant’s appointment, and its report was adopted on 26/1/2005. The court below found that the trial court was wrong because in its view, the appellant was suspended on 22/9/2004, and time began to run from then. Without any hesitation, I will say that the trial court is right and the court below, wrong; because there is a huge difference between suspension from duty and termination of an appointment.
The word “suspension” means a temporary privation or deprivation, cessation or stoppage of or from the privileges and rights of a person. It carries or conveys a temporary or transient disciplinary procedure, which keeps away the victim or the person disciplined from his regular occupation or calling, either for a fixed or terminal period or indefinitely. The disciplinary procedure gives the initiator of the discipline a period to make up his mind as to what should be done to the person facing the discipline. See Unical v. Esiaga (1997) 4 NWLR (Pt. 502) 719, relied on by this court in Longe v. F.B.N. Plc (2010) 6 NWLR (Pt. 1189) 1 SC.
In other words, suspension is usually a prelude to dismissal from an employment. It is neither a termination of the contract of employment nor a dismissal of the employee. It merely operates to suspend the contract rather than terminate the contractual obligations of the parties to each other. See Longe v. F.B.N (supra). Termination, on the other hand, is a different kettle of fish. If the employee does not file his action within the three months after the appointment was terminated, any suit filed after is statute-barred.
In this case, the letter of suspension dated 22/9/2004, and written by the respondent’s acting Registrar informed the appellant that:
“Following security reports regarding extortion of money from students and illegal release of un-approved Diploma Programme results of PSY101 leveled against your person, the University Management at its 56th meeting held on 21/9/2004 decided to suspend you, and you are hereby suspended from duty for three months in the first instance. During the period of suspension, you will be placed on half salary while further investigations into the case will be handled by a committee to be set up by the senate of the University. You are required to hand over all University work materials in your possession to your Head of Department.”
The letter speaks for itself, and shows the essence of suspension to the letter. He was suspended for an initial three months during which time and further investigations were expected to be carried out, and the respondent would decide what should be done to him. The respondent decided to terminate his appointment after the committee it had set up carried out further investigations, and recommended same to the Senate, which adopted its report, and recommended to the respondent’s council to implement it. There were, therefore two distinct stages in the whole scenario.
He was suspended from duty on 22/9/2004, and the senate sanctioned the said termination of his appointment on 26/1/2005. His suspension was merely a directive not to do anything in the discharge of his duties as a professor in the said Department until the respondent made up its mind as to what should be done. The respondent later decided to terminate his appointment. Termination is defined as a final step in the progressive employee discipline process where his or her employment with the employer is permanently severed. See Businessdictionary.com.
Termination of employment is also defined in Black’s Law Dictionary, 9th Ed., as “the complete severance of an employer-employee relationship”.
Obviously, the appellant had no reason to run to court when he was suspended, but had reason to when his employment was being threatened with “complete severance” by the termination. The trial court was right that time began to run when the said senate panel recommended that his appointment be terminated, and the senate in its meeting of 26/1/2005, adopted its report. Thus this appeal succeeds and is allowed. The decision of the court below is set aside, and the decision of the trial court in its ruling of 5/10/2005 is restored. I make no order as to costs.
Appeal Allowed.
LIST OF COUNSEL:
C. Chuma Oguejiofor, Esq., with him, I. Areh, Esq.; A. T. Nwaka, Esq., and O. S. Udenwagu[Miss] – for the Appellant.
O. C. Ugelo, Esq. – for the Respondent.