NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

BEFORE HIS LORDSHIP HON. JUSTICE O.O. AROWOSEGBE

DATE: THURSDAY MAY 15, 2025       SUIT NO. NICN/EN/04/2024

 

BETWEEN:

 

DR. (MRS) ANTHONIA CHIEBONAM EKWO…………CLAIMANT

 

AND

                                                                                      DEFENDANTS        

 

APPEARANCES:

1. LEARNED I.O. ADANI – FOR THE CLAIMANT.
2. LEARNED A.R. AGBO-ANIKE – FOR THE DEFENDANTS. 

RULING

INTRODUCTION AND PROCEDINGS

COMPLAINT commenced this suit Feb 29, 2024. In the Statement of Facts that accompanied the Complaint, the claimant claimed six reliefs verging on declarations on his entitlement to retirement benefits, orders to compel the defendants to produce her withheld file and pay her terminal benefits, and damages of N50Million. The defendants reacted to the above by Statement of Defence [SD] filed 3/5/2024. The defendants also filed the same date, Notice of Preliminary Objection [NPO], to which the claimant/respondent reacted by Written Address in Opposition to the NPO [WAONPO] dated May 13, 2024 and filed May 15, 2024. The defendants/objectors filed a Reply on Points of Law [RPL] dated May 20, 2024 May 22, 2024. 

The matter first came up before me May 23, 2024, on which date the counsel to the parties reported the exploration of amicable settlement and the matter subsequently came up Oct 23, 2024 and Jan 21, 2025 for report of settlement. Settlement was reported to have failed Jan 21, 2025, while the case was adjourned for hearing Mar 25, 2025. Mar 25, 2025, the NPO was heard and adjourned to Apr 3, 2025 for ruling. But the ruling was not ready on this date and was for that reason, adjourned off record sine die. When it became ready, date was communicated to the learned counsel to the parties. Having done with the introduction and summary of proceedings, I move to summarise the NPO, and the Written Addresses [WAs] regarding it.

 

SUMMARY OF THE PROCESSES RELATING TO THE NPO

A: Summary of the NPO and WA

Learned KINGSLEY MAGBUIN franked the NPO with the sole ground that the suit was statute barred. The learned counsel also franked the WA in support of the NPO and submitted the sole issue: “Whether this Court has jurisdiction to entertain the suit filed by the Claimant/Respondent having regard to the provision of Section 2(a) of the Public Officers Protection Act Cap. 41, Laws of the Federal Republic of Nigeria, 2004.”

The learned counsel argued that the action was statute-barred by S. 2(a) of the Public Officers (Protection) Act [POPA] and submitted that, the word “person” as used in S. 2(a) of the POPA, incorporates human beings and statutory authorities as persons, by virtue of S. 18(1) of the Interpretation Act and Ibrahim v. Judicial Service Committee, Kaduna State (1998) 64 LRCN 504 [Ibrahim v. JSC] and other judicial authorities. The learned counsel submitted that, when the issue of POPA is raised, the Court only needs to examine the originating process [OP] to determine whether the challenged suit was filed beyond the three-month moratorium. The learned counsel cited FRN v. Gold (2007) ALL FWLR (Pt. 380) 1444 at 1456-1457, G-B and other cases too. The learned counsel argued that the causes of action herein arose 23/9/2022 when pre-action notice was served and referred to para 20-22 of the SF and that, accordingly, this action, which was filed Feb 29, 2024 is clearly outside the three-month grace provided by S. 2(a) of the POPA, and therefore statute-barred. 

The learned counsel cited Obiefuna v. Okoye (1961) 1 ALL NRL 357 and Forestry Research Institute of Nigeria v. Gold 30 NSCQR Pt. II, 850 at 865-866 to argue that; the action was therefore incompetent and that, this Court must uphold the lack of jurisdiction and dismiss this action on the authority of Shuaibu v. Naicom (2002) 12 NWLR (Pt. 780) 111. Thus, ended the WA in support of the NPO. I move to the WA in opposition to the NPO. 

 

B: Summary of the WA in Opposition to the NPO

Learned C.D. EZEH franked the claimant/respondent’s WA in opposition to the NPO. The learned counsel adopted the lone issue formulated by the objectors. The learned counsel cited the provisos to S. 2(a) of the POPA to the effect that, the POPA does not affect continuous cause of action and would not apply in case of a person suffering a disability, like being in prison, until the disability is removed. The learned counsel submitted that the cause of action in the instant case, did not arise 23/09/2022, as stated by the defendant-objectors but, rather the cause of action is on up till now, as continuous cause of action because, the claimant continued to do a follow up on the question of her missing file till the date she filed this action and, even up till now. 

The learned counsel cited CBN v. Amao (2010) 16 NWLR (Pt. 1219) 273 at 295 in which the Supreme Court held that cause of action arises every month the full pension was not paid. The learned counsel also cited Sanni v. Okene LGA (2005) 14 NWLR (Pt. 944) 60 and, Adaji v. Amodu (1992) 8 NWLR (Pt. 260) 472 that, the claimant, having been on the pursuit of her missing file till she filed this action, the cause of action was accordingly kept alive and consequently not affected by the limitation law, more so when the objectors are not able to trace the claimant’s file till date. Thus, ended the WA against the NPO with exhortation that the Court holds that the action is not statute-barred and, dismiss the NPO. I move to the Reply on Points of Law [RPL].

 

C: Reply on Points of Law [RPL]

Learned KINGSLEY MAGBUIN also franked the objectors RPL and replied that the NPO did not call for evidence and that; the case did not come within any of the exceptions to the POPA. The learned counsel also replied that the respondents also did not file affidavit to show that the case came within any of the exceptions to POPA. On this, the learned counsel referred the Court to Hassan v. Aliyu (supra) 599-622 [though not previously cited in this process], and submitted that, as such, the learned respondent’s counsel cannot rely on any of the exceptions in the WA without evidence, as laid down in the authority. Learned counsel also cited Ajayi v. State (2013) 9 NWLR (Pt. 1360) 589 at 610, F and Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 226 at 255, G-H. 

The learned counsel replied further that the claimant did not plead continuous injury, as such, her lawyer could not refer to any para of the SF to justify it. The learned counsel argued that, by this omission, the learned counsel’s address could not take the place of pleadings/evidence. The learned counsel cited INEC v. Ogbadibo LGA (2016) 3 NWLR (Pt. 1498) 167 on the distinction between continuance of injury and continuance of the effect of the legal injury and submitted that, the claimant’s action was not continuance of injury but one-off cause of action. The learned counsel cited Hassan v. Aliyu again to the effect that, where a public officer acts within the colour of his office, he cannot lose the protection of the POPA and signed off the RPL. 

That is all about summaries of the processes relating to the NPO. My next duty is to give my decision. I have carefully summarised all the processes relating to the NPO, as could be seen above. I have also digested them. I have also carefully read some of the germane authorities cited, to refresh my memory. I also did additional research beyond the authorities cited in order to enable me do justice to the NPO. I note that the extent of the applicability of POPA has become a most recondite issue in the annals of legal and judicial literatures in Nigeria, which is why I decided to do a very holistic examination of the issue, towards providing an answer to the lingering conflicting decisions of the three hierarchies of superior courts in Nigeria on the issue. I go to my decision in the hope that I shall do justice to the thorny issue. 

 

COURT’S DECISION AND THE RATIONALE

The issue before me is: Whether S. 2(a) of the POPA catches this suit? In other words: Is this suit statute-barred by S. 2(a) of the POPA? Under issue 1 in this Court’s decision in Dr. (Mrs) Uche-Chukwuma V. Eze v. Federal College of Education, Eha-Amufu & Anor[1] [Eze’s case] delivered Jun 13, 2024, this Court thoroughly examined this highly vexed and recondite issue and offered new reasons for saying, the POPA was never meant to be applicable to and was actually not applicable to all types of contracts at all, including contracts of employment [service] with statutory flavours. Ordinarily now, I ought just to have cited this authority and dismiss the NPO, but the volatile state of the law on this thorny issue, has not abated since this decision, as the Supreme Court has handed down another decision between that short period, which is inconsistent with the last one I knew as at Jun 13, 2024 when the pertinent decision on Eze’s  case was delivered. And there was yet another conflicting decision on the issue, which I discovered shortly the same day after Eze’s decision was rendered. 

With greatest respect, at least, to my knowledge, three Supreme Court’s irreconcilable decisions between 2022 and 2025 exist on this vexed issue, and galore more before 2022. The three cases are: Aba v. Board of Directors, Nigerian Postal Services (NIPOST) & Anor (2023) 5 NWLR (Pt. 1878) 475 (SC) [Aba’s case] delivered Friday Dec 2, 2022 but reported in NWLR Apr 10, 2023; Rector Kwara State Polytechnic & Ors v. Adefila & Ors (2024) 9 NWLR (Pt. 1944) 529 (SC) [Kwara State Poly’s case] delivered also the same Dec 2, 2022 but reported in NWLR in 2024; and now, Anolam v. The Federal University of Technology Owerri (FUTO) & Ors (2025) LPELR-80027 (SC) [Anolam’s case] delivered Friday Jan 17, 2025. I was only aware of Aba’s Case as at the time I delivered the judgment in Eze’s case but became aware of Kwara State Poly’s case the very day, shortly after I delivered my decision in Eze’s case.

Of course, I became aware of Anolam’s case just delivered Jan 17, this year, Feb 21. And Anolam’s case is in sharp contrast to Kwara State Poly’s case. It held that S. 2(a) of the POPA regulates both the FUTO, as public officer-employer and the appellants, as public officer-employees, as both were public officers whereas, Kwara State Poly’s case had held that, as the statutory employment relationship between the parties was governed by contract, the POPA was not applicable because, it was not designed for and not applicable to contracts. Both cases cited a long line of previous Supreme Court’s decisions in casu. Thus, the issue is not settled and therefore, demands careful re-examination.   

Be that as it may, for now, let us look at the other areas of the POPA or issues connected with the POPA, which Anolam’s case did not touch. Anolam’s case did not touch the questions of exceptions to POPA, which is the real question to be examined here. We shall examine the question of its applicability or non-applicability to contract of statutory employment thereafter. Because, if the question of exception fails, automatically, the question of straightforward applicability crops up and for that reason, holistic approach must be adopted, especially as this Court is a trial court.

But the question of exceptions first, because it is the issue directly joined in the NPO. The major thrusts of counsel’s arguments from both sides on the applicability or non-applicability of S. 2(a) of the POPA to the contract of statutory employment in issue are centred on whether any of the exceptions applied. The claimant/respondent’s learned counsel argued that the injury is continuous and thus, falls within exceptions to the applicability of POPA and cited CBN v. Amao [supra] as the main authority, and the defendants/objectors learned counsel replied that, apart from the fact that the injury was not continuous, the claimant/respondent did not plead and lead evidence to show that the action comes within any of the exceptions. The learned objectors’ counsel submitted further that, resistance to S. 2(a) of the POPA on the grounds of exceptions could only be done by way of affidavit, which the claimant/respondent did not file in the instant case. The learned defendants/objectors’ counsel cited, as his major authority, the Supreme Court’s decision in Hassan v. Aliyu [supra]. The learned counsel argued in his RPL that, once the defendants/objectors’ actions come within the colour of their offices, they are covered by the POPA.

First, it is necessary to clarify that the Supreme Court did not decide in Hassan v. Aliyu [supra] that affidavit must be filed to raise any of the exceptions to S. 2(a) of the POPA or that, any of the exceptions must be specifically pleaded in its technical name, like malice or bad faith or illegality or acting outside the colour of office or abuse of office. Hassan v. Aliyu was a case commenced by originating summons, which is the reason the Supreme Court talked of evidence [affidavits] or facts [pleadings], which must be on record, to determine the question. And it is clear that facts only are pleaded in pleadings and not evidence. The Supreme Court’s use of the phrase “evidence or facts” clearly showed that the Supreme Court anticipated both affidavit and pleadings, whichever was applicable in the form by which the case was initiated. 

In any case, affidavit is both pleading and evidence rolled into one – AMCON v. Suru Worldwide Ventures (Nig) Ltd (2022) 2 NWLR (Pt. 1813) 163 (CA) and therefore, incorporates the concept of pleadings. Since the question of the applicability of POPA for cases commenced on pleadings must be determined by formal NPO, after filing the pleadings, in courts that have barred demurrer, the facts to determine whether the case comes within any of the exceptions must be the pleaded facts, as in the instant case. NIC barred demurrer in Or. 30, R. 8(1) & (2) of the NIC Rules.

More importantly so, the defendants/objectors cited authorities to show that, when issues of applicability of S. 2(a) of the POPA are raised, the courts are confined to the originating processes, which in this case, mean the complaint and the SF. Having filed the NPO without affidavit, the defendants/objectors conceded that truly, only the Complaint and the SF are to be examined to determine this NPO. They cannot therefore turn round to hold the claimant/respondent’s hand from relying on the facts pleaded or the court from making use of these pleaded facts to determine the question of the applicability or non-applicability of S. 2(a) of the POPA. And in this, it does not matter whether the learned counsel to the claimant/respondent correctly assessed the particular exception that is applicable in the case, once the issue of exception is raised, it is the court’s duty to examine the originating processes, to see if there are facts pointing to any of the exceptions, and if so, determine the issue of the applicability of the POPA accordingly. 

It is a court’s duty to apply laws to the facts in issue and draw the necessary legal inferences therefrom – Olutola v. Unilorin (2004) 18 NWLR (Pt. 905) 416 (SC) 447, C and Ndulu v. Wayo (2018) 16 NWLR (Pt. 1646) 548 (SC) 592-593, G-B. And when such is done, the court is not raising issues suo motu but purely performing its duties to apply the law to the facts and draw legal inferences – Oyewo v. Gov., Ekiti State (2023) 17 NWLR (Pt. 1912) 47 (SC) 67, D-E; Idachaba v. University of Agriculture, Makurdi (2021) 11 NWLR (Pt. 1787) 209 (SC) 230, F-G; Dantiye v. Kanya (2009) 4 NWLR (Pt. 1130) 13 (CA) and; Sahara Energy Resources Ltd v. Oyebola (2020) LPELR-51806 (CA). This is because, in adjudication, the addresses of counsel do not bind courts but only the correct position of law and the hard facts bind courts, for which reason, the courts have the primary duty to apply the laws to the facts of cases and draw the necessary legal inferences. More importantly, the Supreme Court laid down the ratio in the self-same Hassan v. Aliyu, as cited and quoted verbatim in para 1, p. 3, lines 12-14 of the learned defendants/objectors’ counsel’s WA: 

“Are there facts on record from which the court can agree with the appellant that the 3^rd respondent acted outside its scope of authority or without semblance of legal justification…” 

 

From the above, the Supreme Court clearly held that, under situations such as above, “a public officer can be sued outside the limitation period of three months…” – Hassan v. Aliyu [supra] (2010) 17 NWLR (Pt. 1223) 547 (SC) 621, E-G, the version I consulted – and that: “The defence must be pleaded while the trial court has a duty to confine itself to the pleadings filed by the parties.” – Hassan v. Aliyu [supra] 619, G-H. Thus, the issue of consulting the complaint and the SF to determine the applicability of the POPA is settled against the objectors. 

Now, let us examine the SF for the existence or non-existence of continuing injury cited by the claimant/respondent’s learned counsel, as bringing the action within one of the exceptions to the applicability of POPA. I have read the authority of CBN v. Amao cited by the learned claimant/respondent’s counsel. It held that when the issue of payment of an amount less the correct pension is concerned, the cause of action arises every month the incorrect pension is paid and the cause of action, being continual, cannot be barred until the pensioner dies. In CBN v. Amao, the Supreme Court appeared therefore to have clearly laid down the ratio that, since payment of pension accrues every month till death, retirees have a perpetual right of action on denial of pension till death, notwithstanding when the first denial occurred.

However, and with utmost respect, the Supreme Court seemed to have subsequently overruled itself in Aba’s case [supra] when it held that, issue of pension is not continuous cause of action and therefore, is statute-barred, when commenced outside the grace period. So, going by this authority, which is inconsistent with CBN v. Amao and being that; it was decided later and actually cited CBN v. Amao and departed from it, I am bound by the doctrines of precedent and stare decisis to hold that, there is no continuance of injury or continuance of cause of action in the instant case, and I so hold. 

But that does not end the issue of whether S. 2(a) of the POPA bars this action. Like I said earlier on, I have the duty to uphold any facts which bring in any exception in the pleadings, even if the NPO was not contested, more so, as a court has the jurisdiction to raise and determine suo motu, the questions of its jurisdiction – PDP v. Edede (2022) 11 NWLR (Pt. 1840) 55 (CA) 92-93, H-A and Ogunseinde v. Societe Generale Bank Ltd (2018) 9 NWLR (Pt. 1624) 230 (SC) 242, E. From the SF and the reliefs sought in this action, it is clear that it is all about terminal benefits: pension and gratuity. Citing cases from labour and employment, the Black’s Law Dictionary, Deluxe Ninth Ed. says ‘pension’ is: “A fixed sum paid regularly to a person (or to the person’s beneficiaries), esp. by an employer as a retirement benefit.” Google defines gratuity as: “a sum of money paid to an employee at the end of a period of employment.” Google also defines the term “gratuity and pension” thus:

“Gratuity is a one-time lump sum payment made to an employee upon retirement, resignation, death, or permanent disablement. In contrast, a pension is a regular payment made to a retiree for the rest of their life.”

 

  The above definition of gratuity was confirmed in Intels (Nig.) Ltd & Ors v. Bassey (2011) LPELR-4326 (CA) 13-14, D-A. From the above definitions of ‘pension and gratuity’, it is clear both are earned moneys paid for labour and work done. That is the sense in which S. 173(2) of the Constitution treats them when it says, they could not be withheld or reduced. This is clearly because, they are earned wages or moneys for labour and work done. A claim for labour and work done is one of the earliest recognised exceptions to the applicability of S. 2(a) of the POPA – NPA v. Construzioni Generali FSC & Anor 3 PLR/1974/48 (SC)[2] [NPA’s case]. Therefore, this case, claiming earned sums [pension and gratuity] for work and labour done, comes within an exception to the applicability of S. 2(a) of the POPA and consequently, not caught by S. 2(a) of the POPA. 

Be that as it may, let me go further to examine whether the case comes within other exceptions. I have carefully read and digested the SF upon which the NPO must be decided. The claimant pleaded both in para 18 of the SF and relief C of the SF that:

“18. It is very unfortunate and In [sic] fact bleeds the heart to learn that my employment file with the defendants suddenly grew wings and flew away such that the defendants and their servants cannot trace or account for the same till date.

C. A DECLARATION that the contentions and allegations of servants of the defendants that the claimant’s official employment file is missing in their domain without any lawful excuse or justification thereby rendering the claimant moribund and stagnated without any retirement benefit/entitlement from 2020 till date is unlawful arid [sic] amounts to an infraction on the claimant’s rights and entitlements as an employee now retired.”

 

From the above excerpts, especially the italicised portions, it is clear the claimant pleaded issue of deliberate sabotage, which if proved at trial, is malice and bad faith, plus illegality to frustrate her claims and acting outside the colour of the defendants-objectors’ office, on which issue was joined when the defendants-objectors argued in their RPL that, they acted within the colour of their office and therefore, covered by the POPA. I have a duty therefore to determine the POPA based on this issue fully joined. If these pleadings are established at trial, the defendants are automatically liable for malice, unconstitutionality, illegality, abuse of office, sabotage and acting outside the colour of their office, to commit the crime of suppressing information in order to deliberately harm the claimant’s genuine interest in the file and thereby frustrate her right to her terminal benefits, by causing the disappearance of an official document in the defendants-objectors’ supposedly secured custody, which is sine-qua-non to the computation of the claimant-respondent’s terminal benefits. 

Following the authority of Hassan v. Aliyu [supra] and the authorities of AG Rivers State v. AG Bayelsa State (2012) LPELR-9336 (SC) 30; Moyosore v. Gov. Kwara State (2012) 5 NWLR (Pt. 1293) 242 at 282-283, D-B, 284-285, G-D; and Agbatiogun v. NNPC (2008) 13 NLLR (Pt. 35) 236 at 257, B-H, I hold that the POPA is consequently not applicable in this instance, where facts were pleaded, raising the questions of unconstitutionality, illegality, malice, abuse of office and deliberate sabotage thus, bringing about the questions of abuse of office and acting outside the colour of the defendants-objectors’ offices and duties. 

Furthermore, the defendants-objectors did not file their pleadings before setting the NPO down for hearing. This is against NIC Rules which forbid demurrer – Or. 30, R. 8(1) & (2) and Or. 5, R. 2(1) & (2) of the NIC Rules [supra], which say, grounds of defence which make an action unmaintainable and limitation law must be pleaded in the SD, and by summons [application] or motion, set them down for hearing in limine for such NPO to be cognisable before the NIC. No doubt, limitation law is procedural and not substantive law – Tonimas (Nig.) Ltd v. Chigbu (2001) 15 NWLR (Pt. 736) 259 (CA) 268-269, H-A and Chigbu v. Tonimas (Nig) Ltd (2006) 9 NWLR (Pt. 984) 189 (SC) 208-209, H-D – and must therefore be first pleaded in the SD before setting it out for hearing by way of motion or NPO [summons] and not otherwise. If not, it is deemed waived, and I so hold.

You cannot complain about someone not following procedure in instituting a suit timeously and you, the complainant or objector too, now followed the wrong procedure to challenge the alleged wrong procedure allegedly used to commence the suit. The court would not listen to you. Such complaint or objection would be dismissed as waived, since it does not affect the Court’s substantive jurisdiction. I am aware that the defendants-objectors filed a SD out of time and also filed motion to regularise it but failed to move the motion in their inordinate haste to kill the case technically before trial and therefore, took the wrong step [procedure] and are accordingly caught by the same trap they set for the claimant. Thus, the NPO, not filed in accordance with procedure, is incompetent and therefore dismissed, having been deemed waived.

Besides, questions of payment or non-payment of pension and gratuity, being constitutionally mandatory and specially protected by the Constitution – SS. 33(1), 34(1)(a), 44(1), and particularly, 173(2) – are fundamental constitutional right questions. They cannot therefore be affected by limitation laws, irrespective of the mode by which the suit was commenced – Gov., Delta State v. Edun (2024) 1 NWLR (Pt. 1919) 267 (CA) 297, E-H:

“The Public Officers Protection Act does not apply to extinguish the right of action in a case of declaratory judgment on allegedly unconstitutional acts. It is immaterial that the suit was not commenced as a fundamental right matter since the principal claim does not relate to enforcement of fundamental right. In this case, since the claim touched on the respondent’s constitutional right to freedom of movement, it can be ventilated in the suit commenced otherwise than under the Fundamental Right (Enforcement Procedure) Rules. The case falls into that exception in the light of the contention and claim of the respondent. [Government of Imo State v. GCEA Ltd (1985) 3 NWLR (Pt. 11) 71; FRN v. Ifegwu (2003) 15 NWLR (Pt. 842) 113; Governor of Bendel State v. Obayuwana (1982) 3 NCLR 206 referred].”

 

The Court of Appeal’s ratio abovein followed the Supreme Court prior lead in Nwanze v. NRC (2022) 18 NWLR (Pt. 1862) 265 (SC) 289, E-F where the Supreme Court firmly held that: 

“By Order 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009, no application for the enforcement of fundamental rights shall be affected by any Limitation Statute whatsoever.” 

 

The Court of Appeal puts it more fittingly, forcibly and clearly in Muhammed v. A.B.U., Zaria (2014) 7 NWLR (Pt. 1407) 500 (CA) 537-538, G-A:

“For any act of a public officer to be protected, it must be constitutional. If the act of a public officer violates the provisions of the Constitution of the Federal Republic of Nigeria, which brings him in direct conflict with the superior authority of the Constitution, the public officer is stripped of his protection under the Public Officers Protection Act and is subjected, in his person, to the consequences of his individual conduct. Thus, the statute of limitation or the Public Officers Protection Act cannot impart to him any immunity from responsibility to the supreme authority of the Federal Republic of Nigeria.” 

 

This is so because the POPA, being an ordinary statute, cannot regulate substantive constitutional right. In any case, the mode by which this matter was commenced [complaint] is approved by Or. 3, R. (2)(2) of the NIC Rules and, S. 254C-(1)(d), 254D-(1) & 254F-(1) of the Constitution, which is equivalent to S. 46 of the Constitution relating to the High Courts’ fundamental rights jurisdiction, and specially tailored for the NIC. And the Supreme Court authorities of Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 (SC) 293-294, E-A, 321, B-D, 348-349, H-B, E-F; Saude v. Abdullahi (1983) 4 NWLR (Pt. 116) 419, B-C; and FRN & Anor v. Ifegwu (2003) 15 NWLR (Pt. 842) 113 (SC) 179, C-E held that fundamental right actions could be commenced by any form of action that makes the complaint comprehensible to the court. Thus, it does not matter that the claimant did not specifically plead the technical term, breach of fundamental rights. It is the Court’s duty to infer the legal rights at stake from the facts pleaded. The fact that they are claimed under the wrong law does not deprive the court of granting the appropriate reliefs, if properly claimed and proved – Abacha v. AGF (2021) 10 NWLR (Pt. 1783) 129 (SC) 160-161, G-C and S. 14 of the National Industrial Court Act [NICA].

This action is a declaratory and injunctive action to declare the defendant-objectors’ conducts herein unlawful [unconstitutional] and, mandating them to righten the injuries and, restraining them from further continuing the injuries. It comes squarely therefore within the confines of actions akin to fundament right actions and would therefore, not matter that the phrase fundament right enforcement or the sections of the Constitution allegedly infringed were not mentioned in the pleadings. What matters are the facts pleaded, which bring in the constitutional provisions and any other laws. You do not plead laws or sections of statutes, but only facts – Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386 (SC) 398, D-H and Onamade v. ACB Ltd (1997) 1 NWLR (Pt. 480) 123 (SC) 145, D-E. My reasoning above must be correct in view of S. 14 of the NICA, which gives the NIC the vires to grant any reliefs anchored by the facts of the case, even if unclaimed.

Furthermore, see also SS. 33, 34, 44(1), 173(1) & (2), 254(1)(f)-(h)&(2) of the Constitution; Arts 4, 5, 6, 17, 23&30 of the Universal Declarations of Human Rights [UDHR], to which Nigeria is signatory, having been admitted as a member of the UN in 1960. These Arts guarantee the rights: not to be enslaved, against cruel treatment, to equality of treatment, to own property [which includes money or income, which terminal benefits are], to income [salaries and terminal benefits]. And Art 30 specifically prohibits all persons and authorities from interfering with these rights. S. 254-(1)(f) of the Constitution makes these inalienable labour fundamental rights in Nigeria in tune with international best practices across the world, as S. 254C-(1)(f) is non-obstante. This is also in line with the expansive construction of Chapter IV of the Constitution as enjoined under Para 3(a) of the Preamble to the FREP Rules. See also Arts 14 & 35 of the African Charter on Human and Peoples’ Rights (Enforcement and Ratification) Act [ACHPRA], which also made these rights inalienable labour rights and therefore, fundamental rights. All these provisions would be impacted, if the allegations in the SF are proved at trial.

See also the Indian case of J. Aswartha Narayana v. The State of Ap[3], which relied on several Indian Supreme Court authorities to hold that, failure to pay workers’ remunerations, as and when due, is breach of fundamental rights to life, dignity of human person and to property, as contained in the relevant provisions of the Indian Constitution and that; it is equally breach of the relevant provisions of the UDHR. By S. 254B-(3)&(4) & 254C-(1)(f)-(h) & (2) of the Constitution, the NIC is under obligation to apply international best practices in labour adjudication and thus, bound by this Indian judicial precedent, on how to construe the relevant provisions of the Nigerian Constitution in relation to questions of non-payment of workers’ remunerations/terminal benefits. In this context, it is therefore clear that the POPA is not applicable to bar actions brought to enforce the constitutional right to terminal benefits, mandatorily guaranteed by SS. 173(1)-(2) of the Constitution which says:

“173(1) Subject to the provisions of subsection (2) of this section, the right of a person in the public service of the Federation to receive pension or gratuity shall be regulated by law.

(2) Any benefit to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the Code of Conduct.”

          

The above mandatory constitutional provisions and the fundamental right conventions cited abovein, make it abundantly clear that pleading of allegations of violation of the right to prompt payment of terminal benefits, implies questions of unconstitutionality, unlawfulness, illegality, abuse of office and acting outside the colour of office, when there are no statutory justifiable grounds for such conducts. Such alleged misconducts have always been recognised as exceptions to the applicability of S. 2(a) of the POPA. The provisions of Chapter IV of the Constitution on fundamental rights cited above, which the facts pleaded, if proved, implied, together with the fundamental rights guaranteed in the ACHPRA and UDHR raised questions of violations of fundamental constitutional rights in this case. These compounded the clear inapplicability of the POPA to the case herein and I so hold. It therefore logically arises from my reasoning so far that S. 2(a) of the POPA is clearly inapplicable to this suit.

Be that as it may, I will now examine the latest Supreme Court’s authority Anolam’s case on this vexed issue. This I will do in case my preceding decisions are not correct. It is my duty as a trial judge to do this – Bala v. Nigerian Army (2024) 15 NWLR (Pt. 1962) 447 (SC) 473-474, H-B. The Supreme Court held in Anolam’s case that S. 2(a) of the POPA is applicable to statutory employment because, it regulates the relationship between the two sides to the employment, since both sides are public officers. With profound respect, I need to draw attention to the fact that, the case did not emanate from the NIC and was also not decided under the Third Alteration Act. The cause of action arose Feb 21, 2003 when the plaintiff’s appointment was terminated, and the Third Alteration Act came into effect Mar 4, 2011.  It is clear therefore, that the case was not decided under and could not have been decided under the auspices of the Third Alteration Act, as the applicable law to a cause of action is the law in place at the time it occurred – Adesanoye v. Adewale (2000) 9 NWLR (Pt. 671) 127 (SC) 150, C-E. 

As such, the case did not and could not have considered the effect of the Third Alteration Act on the applicability of the POPA to contracts of service, including contracts of statutory employment. It is therefore distinguished on the ground that the Third Alteration Act, which has effect on the validity of all statutes touching on employment and labour maters, postdated the cause of action in Anolam’s case. Therefore, the POPA has to be construed anew under the Third Alteration Act to determine its validity afresh and all the previous authorities could only be persuasive but not precedential. There is no doubt that the Third Alteration Act is a radical statute which had effected radical changes in the laws of the realm with regard to employment/labour laws. 

In a nutshell, the Third Alteration Act is a game changer in labour/employment jurisprudence. It is in recognition of this fact that the Court of Appeal held in Sahara Energy Resources Ltd v. Oyebola (2020) LPELR-51806 (CA) that it is always necessary to inquire in all employment/labour cases, after the ascension of the Third Alteration Act: “whether indeed a new legal regime that demands a departure from the principle as it existed has been introduced in our corpus juris in employment and labour related litigations” and admonished that:

“The proper attitude of the court when confronted with an innovation introduced by way of an amendment to an existing law or a new statute simpliciter (in this case, the Third Alteration Act to the 1999 Constitution and the National Industrial Court Act of 2006) was enunciated in the case of Bank of England vs. Vagliano Brothers (1891) A.C. 107 at 144-145 (per Lord Herschell) as follows:

‘I think the proper course in the first instance is to examine the language of the statute and to ask what is the natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start by enquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.”

 

See also NDIC v. Okem Enterprises (2004) 10 NWLR (Pt. 880) 107 (SC) and Nasarawa State Specialist Hospital Management Board v. Mohammed (2018) LPELR-44551) (CA). What the Court of Appeal intoned is that we must have an open mind in the construction and application of a revolutionary statute and apply it in fidelity to the literal meanings of its provisions. We shall examine both the POPA and the Supreme Court’s decision in Anolam’s case in the eye of the Third Alteration Act and see if the law remains constant as the Northern Star or has changed. Doing that is one of the permissible exceptions to stare decisis. Now S. 254C-(1)(f)-(h) & (2) of the Constitution provides that the NIC shall have and exercise non-obstante jurisdiction:

“(f) relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters;

(g) relating to or connected with any dispute arising from discrimination or sexual harassment at workplace;

(h) relating to, connected with or pertaining to the application or interpretation of international labour standards; …

(2) Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith.”

 

The above are non-obstante constitutional provisions that subject all the other provisions of the Constitution to themselves – GTB Plc v. Obosi Micro Finance Bank Ltd (2022) 4 NWLR (Pt. 1821) 455 (SC) 511-512. The concept of unfair labour practices covers statutes that encapsulate or encourage unfair labour practices and unfair labour adjudication. The rights conferred in S. 254C-(1)(f)-(h)&(2) of the Constitution become implied fundamental terms of all contracts of employment in Nigeria and the desideratum against which all statutes that impinge on labour/employment causes must be tested for validity. By these, the NIC must shun labour law and practice of statutes that encourage unfair labour practices or that actually depict unfair labour practices and shun its adjudication of labour cases of unfair adjudication. It is unfair therefore to interpret a statute in a way that would run counter to labour/employment rights. It goes without saying that if S. 2(a) of the POPA is incompatible with S. 254C-(1)(f)-(h)&(2) of the Constitution in any respect, it has to give way to the extent of its incompatibility by virtue of the supremacy provisions of SS. 1(1)&(3) and 315(3) of the Constitution. 

By virtue of S. 254C-(1)(f)-(h)&(2) of the Constitution construed together with SS. 13-15 of the NICA, the NIC has the jurisdiction to eschew unfair labour practices and enthrone international best labour practices, as the modern currency of labour law in Nigeria and by that, bring labour/employment law up to international best standards/practices. And S. 254B-(3)&(4) of the Constitution, as rightly expounded and espoused by the Court of Appeal in University of Ilorin Teaching Hospital Management Board & Anor v. Mariam (2016) LCN/9083 (CA) and Sahara Energy Resources Ltd v. Oyebola [supra], the NIC is imbued with the expertise to determine what amounts to unfair labour practice and to righten it in accordance with international best practices. The duty of the NIC under S. 254C-(1)(f)-(h)&(2) of the Constitution is similar to the practice of the national courts and European Court of Human Rights [ECHR] of subjecting challenged municipal statutes in the member states to the European Conventions on Human Rights [EC][4]. 

The ECHR has evolved the tests of reasonability and proportionality[5] to verify the validity of all municipal laws under the EC. And the Supreme Court of Nigeria approved the use of the decisions of the ECHR as persuasive authorities in the application of the fundamental right provisions of the Nigerian Constitution saying, the fundamental right provisions of the Nigerian Constitution were borrowed from the EC and UDHR – Kalu v. State (2017) 14 NWLR (Pt. 1586) 522 (SC) 544-545, D-A. In fact, the proportionality and reasonability tests are not strange to Nigeria, having been directly domesticated by the Constitution, first in SS. 1(1)&(3), 45(1)(a)-(b), 315(1)(a)-(b)&(3) and now, in S. 254C-(1)(f)-(h)&(2), in relation to labour relations. They all seek that all municipal statutes must compositely answer the same questions for their validity under the doctrine of proportionality. These questions are: is the municipal statute legitimate, suitable, necessary and fair, when tested against the EC, and in this instance, the Nigerian Constitution? That is the hallmark of a constitutional democracy.

The duty to do this has become more poignant in Nigeria in relation to labour law and practices, as S. 254C-(1)(f)-(h)&(2) of the Constitution, for first time, directly makes it compulsory for the NIC to test the validity of all laws that impinge on labour practices in Nigeria, under the supervisory auspices of unfair labour practices and international best practices. If a statute unreasonably impinges on fair labour practices, it is caught by S. 254C-(1)(f)-(h)&(2) of the Constitution. Equally, if a statute conferring rights to government disproportionally impinges on labour rights in its objective goals, without any justifiable or sufficiently justifiable operational needs, it is also caught by S. 254C-(1)(f)-(h)&(2) of the Constitution. S. 254C-(1)(f)-(h)&(2) of the Constitution objectives fair dealings and reasonable justifiability in a democratic society in labour relations. In effect, the doctrines of reasonability and proportionality are concepts akin to the doctrines of unfair labour practices and international best practices. They are the yardsticks by which objective fairness and unfairness are determined in labour relations. The question now is: is S. 2(a) of the POPA legitimate, suitable, necessary and fair [proportionally reasonable] in labour relations and practices in Nigeria in accordance with international best practices?

There appears to be no country amongst the established democracies with statute like the POPA and there is no place where the like of S. 2(a) of the POPA applies to contracts, including contracts of statutory employment or otherwise. This marks it out as not being in consonance with international best practices in labour/employment relations. And by this fact, it is immediately illegitimate, unsuitable, unnecessary and unfair labour practice for S. 2(a) of the POPA to continue to exist in Nigeria. S. 2(a) of the POPA is not only unfair because the grace period it gives is too short, but more so, because, it is impossible to take it into consideration at the formation stage of a contract of statutory employment and throughout thereafter, to the points of breach and institution of action in courts, having not been made a term and condition of the contract, nor incorporated by reference by the appointment letter. This is what the Court of Appeal impliedly underscored in Iyase v. UBTHMB (2000) 2 NWLR (Pt. 643) 45 (CA):

“The Court must confine itself to the terms of contract of service between the parties which provide for their rights and obligations. In the instant case, before the contractual relationship between appellant and the respondent with regard to the removal of the former by the latter can enjoy statutory flavour, section 9 of the University Teaching Hospitals (Reconstitution of Boards etc) Act must be expressly incorporated into the contract of employment existing between the parties. It is such incorporation that gives rise to special treatment by way of statutory or legal flavour in the event of the master terminating the appointment of the servant.”  

 

What could be gathered from the above is that, before any term could be imported into a contract of statutory employment, like all other contracts, such term must be expressly incorporated by the appointment letter. By the same token, since statutes can moderate contracts, such statute must be expressly moderative of contracts, by specifically mentioning contracts and making them the objects of its concern. This means S. 2(a) of the POPA cannot be read into contracts of statutory employment, like it cannot be read into all other contracts, since it is not incorporated by the appointment letter and still cannot be read into any contract because, its objects are not contracts.  It did not mention contracts or any consensual relationships and therefore, excludes them – Opia v. INEC (2014) 7 NWLR (Pt. 1407) 431 (SC) 464, D-F. That is the purport of all the Supreme Court’s authorities that held that S. 2(a) of the POPA was not applicable to all contracts, including contracts of statutory employments. 

While ignorance of the law is no defence, nevertheless, the law does not command the impossibility – Soyannwo v. Akinyemi (2001) 8 NWLR (Pt. 714) 95 (CA) 121, H-B and Chrislieb Plc v. Olagbaju (2004) 4 NWLR (Pt. 863) 342 (CA) 365, A-B. As S. 2(a) of the POPA did not mention contracts in all its provisions, it could not naturally and logically be deemed to be known to the employees when entering into contracts of employment, especially so in the employees’ awareness of S. 7(1)(a)-(b) of the Limitation Act [LA] which directly mentions contracts. So, it would be unfair, unreasonable and disproportional to read it into any contract, including contracts of statutory employment and, additionally, because the grace period is unreasonably short, the employee could not be found liable for filing outside three months. Laws are not fashioned to catch people unaware but rather; they are signposts to forewarn people to plan their lives and order their affairs accordingly. Therefore, S. 2(a) of the POPA suffers from the deficit that it is too remote to contracts to be ordinarily fathomed into contracts of statutory employment or any contract at all. It also promotes chicanery on the part of government as employer against the citizen-public-employees. 

For any such unreasonably short limitation time to be applicable to contracts, including contracts of statutory employments, it must either be clear in its wording that it applies to contracts or, be made directly an integral part of the contract, by being made a term in the contract so that, the parties would know from inception that the unnaturally short limitation time is of essence in the contract and that the public employee is entering into an unequal contract of slavery with his public employer when a dispute arises in future. Any statute that would radically redefine a fundamental principle of law tending towards constitutional rights of liberty and freedom of choice, which the law of contract signifies, cannot be sloppy, remote and ambivalent. It must be direct and overt. The right to freedom and liberty of choice in contract is a fundamental right of liberty and freedom of choice and cannot be waived aside by a feeble wind of the nebulous provisions of the POPA or any such statute which did not, for once, mention contract or consensual agreements or the like, being imported into contractual disputes.  

The most basic essence of the law of contract being that, for parties to be ad idem, all the terms and conditions of the contract must be made clear and known to the parties, especially to the party to be negatively affected, from the very inception, and this is particularly important in employment contracts for two reasons: 1. Employment contracts are most often adhesive contracts, with the tone of take-it-or-leave-it, and 2. Workers/employees are the weaker parties protected by labour law in contracts of employment. Employees, being the weaker parties, must be protected against the sharp practices of employers, be they public employers or private employers. Contracts of adhesion are ordinarily narrowly construed or normally attract the unfair contract terms regime in established democracies – Jordan Bramis, “How to Draft a Standard Form Contract[6]”. Therefore, any nebulous, ambiguous or remote terms are discounted, as to take them into account, is to judicially sanction employers’ chicanery and fraud on employees. And it becomes more so where the said term is not even part of the contract and does not refer to contract.

The provisions of S. 2(a) of the POPA, having not specifically mentioned contracts or employment relations, are too remote to be read into any contract of employment in their general, vague and at-large language. They cannot be interpreted to refer to a specific contract in which the very fact of S. 2(a) of the POPA was not brought to the attention of the employees or incorporated by reference by the appointment letter into the contract, as in the terms and conditions, which are also statutory. They must be deemed to be too remote to form part of contract of statutory employment. This interpretative policy must extend to even situations where the statute creating the public authority or department specifically provides the limitation period within which to bring actions against the public department/public authority, in as much as it is couched in general terms at large and not specifically directed at the contracts with the public department/authority. This was what the Supreme Court did in NPA’s case where it construed S. 97 of the Ports Act as being in pari materia with S. 2(a) of the POPA and held that it was not meant to be applicable to contracts, claims for work done and for debts because, these contractual terms were not mentioned in its provisions. 

There is no basis to single out statutory contracts of employment when the POPA did not do so directly. To do so against public employees, is to strike at the very root of contract and say, while all other citizens as parties to contracts with public departments, enjoy their normal contractual rights and would not be caught by the-at-large-language of any statute because of the doctrine of remoteness, the public employees whose contracts were also not specifically mentioned by such statute, like all private persons that had contracts with government, would be caught by the inimical grace period provided in the POPA that does not mention contract and that, does not bar other contracting parties, simply because, they contracted to be public employees. This may be readily implied where the enabling statute says that the public authority/government department has the power to enact conditions of service, and the conditions of service so enacted, made the POPA the limitation period to institute actions for breach of the contract, otherwise, no. 

The grace period contained in the conditions of service, if reasonably justifiable, will be the applicable period because, that is what the enabling statute expressly sanctioned. This shows that the limitation period contained directly in the enabling statute and not in the conditions of service, and which did not mention contract of service, is meant for non-contractual third parties/actions – NPA’s case. The doctrine of remoteness should apply across board to all without discrimination. To hold otherwise is to employ the instrumentality of the POPA to perpetuate fraud, chicanery and unfair labour practices on public employees, a situation which equity forbids and which S. 254C-(1)(f) of the Constitution and SS. 13 & 15 of the NICA forbid – Total (Nig.) Plc v. Akinpelu (2004) 17 NWLR (Pt. 903) 509 (CA) 524-525, B-E; Hart v. TSKJ Nig. Ltd. (1998) 12 NWLR (Pt. 578) 372 (CA) 388, G; B.A.L. Co. Ltd. v. Landmark University (2020) 15 NWLR (Pt. 1748) 465 (CA) 491, D.  

That the foregoing proposition is correct is brought out clearly by the fact that, there are other limitation statutes, which specifically and clearly deal with all types of contracts at both the federal and state levels in Nigeria and the Supreme Court has held in Osakue v. FCE (Technical) Asaba & Ors (2010) 10 NWLR (Pt. 1201) 1 (SC) 41, C-D that: “The relationship of an agency of the Federal Government entering into a contract of employment with an employee is a business relationship…” and, in CIL Risk & Asset Mgt. Ltd v. Ekiti State Govt. (2020) 12 NWLR (Pt. 1738) 203 (SC) 270, C-F that, the POPA was not applicable to actions founded on contract but the Limitation Law of Ekiti State and similarly, in Revenue Mobilisation, Allocation and Fiscal Commission & Ors v. Ajibola Johnson & Ors (2019) 2 NWLR (Pt. 1656) 270 (SC) [RMAFC’s case] 270, F, the Supreme Court held that: “Section 2(a) of the Public Officers Protection Act does not apply to cases of contract. In this case, the respondents’ claim is on a contract of service. Thus, the appellants are not covered by the provisions of the Public Officers Protection Act”. These cases pointed to the fact that the LA is the applicable statute. The Supreme Court reinforced this, as recent as 2022, in Kwara State Poly’s case, which is on contract of statutory employment, as the present case, when it held: “In this case, the 1^st-3^rd respondents’ action is grounded in contract. Therefore, the defence of statute-bar under the Public Officers (Protection) Law raised by the appellants does not avail them.” It comes about that the POPA was illegitimate, unsuitable, unnecessary and unfair in the presence of the LA.

For the federal, we have the Limitation Act, [LA]1966, CAP 522, Volume 3, LFN (Abuja). And for the states, for example, there is the Actions Law of Enugu State, Limitation Law of Ekiti State, like that like that. I am not unaware of S. 4 of the LA that saves all other statutes of limitation, which obviously include the POPA. But the fact that, after the saving of the other limitation laws, it goes ahead to make the provisions in S. 7(1), as to the grace periods for both simple and special contracts and all other types of contracts, points to the fact that, it covered the field that it believes S. 2(a) of the POPA, or any other limitation statute, did not and has not covered. The clear and unambiguous provisions of S. 7(1) of the LA could therefore only be defeated by clear provisions of the POPA that are irreconcilable with those of S. 7(1) of the LA. And there is none, as the POPA did not mention contracts, and therefore, could be reconciled with S. 7(1) of the LA in that, both did not cover the same field. The saving therefore only relates to inadvertent situations that are obviously irreconcilable, such as S. 8 of the LA with respect to torts arising from negligence, a field which S. 2(a) of the POPA appears to have sufficiently covered in respect of public officers. That is, if all arguments against the legality of the POPA is discounted in the meantime. As S. 2(a) of the POPA did not mention contract, it did not apply to contracts. S. 7(1)(a)-(b) of the LA, which is applicable in this case, in which the defendants are federal agencies, provides:

“The following actions shall not be brought after the expiration of six years from the date the cause of action occurred:

1. Actions founded on simple contract;
2. Actions founded on quasi-contract…” 

 

Now, the Supreme Court held emphatically in Osakue v. FCE [supra] that:

“In the instant case, the issue for determination by the court between the parties was based on a contract of employment. The relationship of an agency of the Federal Government entering into a contract of employment with an employee is a business relationship…”

 

This was affirmed by RMAFC’s case [supra] and CIL Risk & Assets Mgt. Ltd v. Ekiti State Govt. [supra]. From the above, it is clear that the Supreme Court did not make a distinction based on the type of contract of employment between statutory and common law employments but held purely, that in both situations, both sides were pure contracting parties, governed by the terms and conditions of the contract of employment executed between them. However, the decisions of the Supreme Court in Idachaba’s and Anolam’s cases, which held that the POPA was applicable to contracts of statutory employment, negate these Supreme Court’s cases. In fact, the Supreme Court’s cases of Kwara State Poly and Aba’s case, which were decided on in pari materia statutes the same day, gave contradictory decisions on the similar facts and similar statutes. If the Supreme Court, with utmost respect, has been given irreconcilable conflicting decisions since the time of Ibrahim v. JSC till date, without a discernible ratio decidendi on the applicability of S. 2(a) of the POPA to contracts of statutory employment, it shows that the POPA suffers the deficit of being too remote in its language or, at best, too ambiguous and nebulous to be applied to contract of any type. 

So, S. 2(a) of the POPA does not regulate the relationship of public employees and public employers, as it has nothing to do with contracts but rather, it is S. 7(1) of the LA that has bearings on grace periods for institution of suits in contracts because, it specifically incorporates all types of contracts. It needs be stated herein that, by the tenor of S. 2(a) of the POPA, its object is the protection of the public officers, departments, agencies and authorities alleged to have committed torts against a third party in purely non-contractual occasions in the courses of their official duties, regardless of the status of the third party wronged. It does not regulate the contractual relationship of the public employee with the public employer inter se. It only regulates the conduct of a public officer with the world at large.

The POPA therefore does not contemplate the nature or status of the injured person, whomever it might be. That is why it is applicable to pure private persons injured by a public officer in torts and hence, the issue of whether the injured person is incidentally a public officer is irrelevant, so far it is not contract, which is governed by the terms executed between parties. But it contemplates the type of injury, which, are only tortious injuries. This is the missing link and the cause of the ambiguity in the construction of S. 2(a) of the POPA, and the point would be further developed at the appropriate place anon. And when a choice is to be made between S. 2(a) of the POPA and S. 7(1) of the LA, it would be that, because of the great differential in the grace periods provided by both, S. 2(a) of the POPA is expropriating, while S. 7(1) of the LA is preservative of the rights of citizens and thus, S. 2(a) of the POPA must be construed narrowly against the public authorities, while S. 7(1) of the LA must be construed liberally in favour of preserving the citizens’ rights to longer grace periods to file suits and their rights against unfair labour practices and discriminatory application of law in labour relations, as secured by S. 254C-(1)(f)&(h)&(2) of the Constitution and ILO C111 – CIL Risk & Assets Mgt. v. Ekiti State Govt & Ors [supra]. 

Limitation statutes are considered beneficial statutes because they confer rights across the board, a condition the discriminatory POPA did not satisfy and therefore, falls into the class of expropriating statute, more particularly so in the face of the LA, which satisfies both reciprocity and sufficiency of grace periods, contrary to the unreasonably short one-sided grace period in POPA, which is directly in contest with the constitutionally conferred rights of access to court and equality before the law. The POPA cannot be anything than expropriating statute and must therefore be narrowly construed while the LA must be broadly construed, being truly a beneficent statute. 

There is no doubt that the relationship between the claimant herein and the defendants is purely governed by the contract between them. It is thus reasonable that the claimant would only advert and could only be deemed by the courts to have adverted to only S. 7(1) of the LA, which specifically mentions all types of contracts and the limitation times that would apply in each type and not S. 2(a) of the POPA, which never mentioned contracts, or anything remotely connected to contracts. The specific mention of a thing excludes those not mentioned – Okoh v. Fedpoly, Bauchi (2024) 15 NWLR (Pt. 1961) 261 (SC) 288-289, E-A and shows that, all types of contracts and contracting parties are excluded from the ambits of S. 2(a) of the POPA and that; the POPA is only applicable to causes of actions that are not contractual. Coming from the above reasoning, there is therefore no basis why public officer-employers should be excluded from the cover of the POPA in all types of contracts but only not in contracts of statutory employments. It amounts to double standards and discriminatory application of the law against public employees and therefore, unfair labour practice, which is forbidden by S. 254C-(1)(f) & (g) of the Constitution and the ILO C111.

The rule of interpretation is that expropriating statutes must be narrowly construed, by which implication, the POPA must not be construed to imply anything that is not clearly stated therein, and since contracts between public bodies and public officer-employees were not stated to come within its dragnets, its applicability to contracts of statutory employment must be excluded too, like in all other contracts. 

The simultaneous existences of two separate statutes – the POPA and the LA with two divergent grace periods on the same subject matter, if we agree that the POPA has something to do with contract of statutory employment, creates ambiguity about the particular statute, applicable between the two, and the law in employment relations is that, if there is ambiguity about the terms of employment contract, the court takes the interpretation that favours the employee, being the underdog. The contra proferentem rule is therefore applicable here, thus, the LA must be taken as the applicable law, let the legislature go put its house in order by stating clearly if it wants the POPA to apply to contracts of statutory employment. It cannot be allowed to set trap for workers with two statutes with two divergent limitation periods on the same subject matter. Section 254C-(1)(f)&(g) of the Constitution would frown seriously at the scenario as a classic case of unfair labour practice and discrimination to now pick the POPA as the applicable law – New Nigeria Development Company Limited v. Daniel Ugbagbe[7] and, Delmas v. Sunny Ositez Intl Ltd (2019) 9 NWLR (Pt. 1677) 305 (SC) 323-342, B-E, 329, B-C. You cannot create an ambiguous situation and benefit from it.

That is what S. 254C-(1)(f) of the Constitution actually implies because, it is actually unfair to resolve ambiguity in terms of employment in favour of the stronger party. And it does not matter in this instance, whether the ambiguity is statutory. It cannot stand in the face of S. 254C-(1)(f)&(g) of the Constitution that bars all forms of unfair labour practices and discriminatory application of law in employment cases, wherever they are found, either induced by statute or by mere practices not traceable to any statute. If we agree the POPA has anything to do with contracts of statutory employment, by implication, both the POPA and the LA are deemed to be terms and conditions of contracts of employment and create ambiguity about the particular applicable one.

Besides, by virtue of S. 254C-(1)(f)-(h) & (2) of the Constitution, there is no basis for the dichotomy between any other type of employment and employment with statutory flavour because, both are purely products of agreements. It does not matter that in statutory employment, both sides are public officers. What binds them together with regard to the employment relationship are the terms and conditions executed between them, which are purely personal in nature and when breach occurs, they are determined in accordance with the terms and conditions involved in the contract, as authenticated by the letter of employment and the employment handbooks.

Notwithstanding that the terms and conditions of statutory employments are contained in statute/byelaw, we should not lose sight of the fact that it is still the contracts between the parties that made the statute/byelaw containing the terms and conditions of service part of the agreement and not by fiat. The practice is that a normal appointment letter in statutory employments state the applicable statutes and where the conditions [terms] of service are to be found. Hence, for any statute not stated as applicable in the letter of employment to interpose itself into such statutory employment agreements, it must be clear beyond reasonable doubt that such external statute actually radically interposed itself into the contract by specifically mentioning contracts or contracts of statutory employment. That is exactly what S. 7(1)(a)-(b) of the LA did. That is why there is no dispute about its applicability to contracts, and this is the reason why the restrictive school of thought holds that the POPA was not meant to apply to contracts. 

And this was because it never mentioned contracts or terms of contracts or agreements and the breach of same. Any scintilla of doubt, as created by S. 2(a) of the POPA, must be resolved against such at-large statute, as that is the only way to do justice to the contracting parties. And the doctrine of remoteness applies to even provisions of the enabling statute creating a government authority with general provisions about the duties, functions and other issues connected with the statutory authority, especially where it also states that the statutory authority could enact byelaws on conditions of service of its staff; but goes ahead to create a general limitation period on actions against it without specifically mentioning that it applies to contracts – NPA’s case.

Since it is clearly stated that the conditions of service are to be found in the handbook, it would be taken that the conditions of service enacted in the byelaw [handbook] are the one to provide the limitation period because, everything relating to the contracts of employment has been ceded to it. Such general limitation period that excluded to mention suits on breach of contract would be taken to have left the limitation period for the contract of employment for the conditions of service, which govern the contract. Such would be the fate of S. 83(1) of Nigerian Railway Corporation Act [NRCA], which provides for 12 months limitation period generally for actions commenced against the Corporation but which, its S. 17(1) gives the Corporation power to make terms and conditions of service. S. 83(1) with the 12-month general limitation law against suits commenced against the Corporation is not binding on any contract of employment or any other contract it entered into because, obviously, it extends to third parties [the whole world at large] not to any particular contract with the Corporation – NPA’s case.

It will offend the doctrine of privity to extend it to specific contracts, which create personal obligations of specific natures. In any way, adhesive contracts are construed narrowly against the drafters. To do otherwise is to bring extraneous issue into a specific contract. That is the only way to do justice to the agreement between the parties and it does not matter that the employees are public officers because, as statutory employees, they are nonetheless still in contracts and entitled to all the benefits of the contracts. Note that textually, S. 83(1) of the NRCA is exactly the same as S. 2(a) of the POPA, except in regard to longer limitation time of 12 months and must therefore yield to the same construction as regards issues outside the differential grace period – AG Abia State v. AGF (2005) 12 NWLR (Pt. 940) 452 (SC) 506, E-G. 

As S. 254C-(1)(f)&(g) of the Constitution eradicates unfair labour practices and discriminatory employment practices, if the POPA is read into the contract of statutory employment, as the Supreme Court, with utmost respect did, in Anolam’s case, it would offend S. 254C-(1)(f)&(g) of the Constitution by enthroning unjustifiable dichotomy in accruable benefits between statutory and common law employment in such a way that, common law employee is now put on a better footing than statutory employee in terms of access to courts. 

While the common law employee would be entitled to the benefits of the LA at the federal level of the FCT, with longer grace period to access courts, his counterpart in a statutory employment at the federal level, would be deprived of this longer period by reason only of his status as a public employee. And besides that, the public employee would suffer a double jeopardy in that, while the Third Alteration Act had upgraded all forms of common law employments to the status of employment that enjoyed constitutional flavours and thus, at par with employment with statutory flavour,  which in the words of the Court of Appeal in Sahara Energy Resources Ltd v. Oyebola [supra], the Constitution now affords all employees “the necessary salve” against unfair labour practices, meaning, common law employees are now at par with the statutory employees, except with respect to the reluctance of labour courts to grant reinstatement in common  law employment cases. However, labour courts grant adequate compensation where reinstatement could not be granted so that, more or less, common law employees are for all practical purposes, at par with public employees with statutory flavours. The real essence of statutory flavour is the protection against unfair labour practices, which common law employment now enjoys along with statutory employment by virtue of S. 254C-(1)(f)-(h)&(2) of the Constitution. In a nutshell, S. 254C-(1)(f) of the Constitution together with SS. 12-19 of the NICA now covers the field of statutory flavour for all forms of employment alike in Nigeria.  

The implication of applying S. 2(a) of the POPA to statutory employees alone is that the status of statutory employees has been relegated in the present-day Nigeria by the POPA to a lower standard compared to that of common law employees against whom he was originally in better conditions of service before the Third Alteration Act. The forlorn fate of a public employee in Nigeria under the POPA is further aggravated when the Supreme Court held in Sylva v. INEC (2015) 16 NWLR (Pt. 1486) 576 (SC) 619, F-G; 619-620, E-B that the POPA applies to protect a private contractor sued jointly with a public officer. This means, while a public-employee-public-officer does not enjoy the benefit of the POPA when sued by government – Kwara State Pilgrims Welfare Board v. Jimoh Baba (2018) LPELR-43912 (SC) – a private contractor does, and the public-employee-public-officer equally has the disadvantage of the POPA when he sues the government for breach of the contract of his employment by the government and its agents.  

That cannot be the intendment of the Third Alteration Act, particularly in view of S. 254C-(1)(f) & (g) thereof. Applying S. 2(a) of the POPA to statutory employment would also mean statutory employees and public employers are not at par, as regards their rights and obligations in the contract because, assuming a public employer commences a suit against a public employee, can the public employee plead the POPA? I do not think so – Kwara State Pilgrims Welfare Board v. Jimoh Baba [supra]. And the aim of modern employment relations is to bridge the gulf in the rights between employees and their employers, be they in public or private employments, and make them at par. 

So, the POPA must be construed narrowly to ensure it does not conflict or limit the ambits of the benefits conferred by S. 254C-(1)(f)&(g) of the Constitution in line with the doctrine that constitutional provisions enjoin broad construction to widen the rights of citizens and therefore, all laws that might limit these rights must be declared void to that extent – Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458 (SC) 484, A-C. The Supreme Court’s conflicting decisions on the applicability of S. 2(a) of the POPA to contracts of statutory employment showed that, there is doubt about its applicability thereto. That doubt must be resolved in favour of the public employees who are the underdogs in the public employment relations.  

As indicated earlier on, this Court, by virtue of SS. 254B-(3)&(4) and 254C-(1)(f)-(h)&(2) of the Constitution, has the sacred duty, as confirmed by the Court of Appeal in Sahara Energy Resources Ltd v. Oyebola [supra], to apply international best practices in the adjudication of labour/employment disputes. International best practices or international labour standards are found mainly in the ILO Conventions and instruments and decisions of courts from comparative labour jurisdictions. Art 8(3) of the ILO C158 provides that:

“A worker may be deemed to have waived his right to appeal against the termination of his employment if he has not exercised that right within a reasonable period of time after termination.”

 

Admittedly, the above-quoted provision deals with causes arising from termination of employments but nonetheless, the concept is that of filing of suits in employment cases and therefore, applies to all suits on employment relations. The implication is that the right of access to courts in labour/employment cases could only be limited by the doctrine of reasonable time. The NIC, taken into consideration all surrounding circumstances, by virtue of S. 254B-(3)&(4), 254C-(1)(f)-(h)&(2) of the Constitution and Art 9 of the ILO C158, therefore has the discretion to determine what a reasonable time is and this discretionary power cannot be curtailed by any statute other than the Constitution itself. This discretionary power to determine a reasonable time is infringed by S. 2(a) of the POPA, which is inconsistent with the discretion granted the court and therefore, null and void. The question then is: Is three months as prescribed in S. 2(a) of the POPA reasonable and in tune with international best practices? I will start my answer herein by quoting the South African Constitutional Court in Leach Mokela Mohlomi v. Minister of Defence[8] in which it sets the parameter for an assessment of a similar statute as this vis-à-vis right of access to court under S. 22 of the South African Constitution:

“What counts rather, I believe, is the sufficiency or insufficiency, the adequacy or inadequacy, of the room which the limitation leaves open in the beginning for the exercise of the right. For the consistency of the limitation with the right depends upon the availability of an initial opportunity to exercise the right that amounts, in all the circumstances characterising the class of the case in question, to a real and fair one”

 

I have shown earlier on that S. 2(a) of the POPA is at best remote and ambiguous in itself with regards to its applicability to contracts and, more so, in the face of the LA and in its plain meaning, totally inapplicable to contracts because, it did not mention contracts. I have also shown that it commands impossibility because, it could not be literally read into contracts of employment in the face of S. 7(1)(a)-(b) of the LA. The implication is that, if S. 2(a) of the POPA is construed with S. 7(1)(a)-(b) of the LA, it produces both ambiguity and absurdity and lures citizens to be caught in the web of not being aware it is applicable to contracts, and therefore, S. 2(a) of the POPA is unfair for short-changing public employees with an abnormally short grace period to sue, which is hidden in a statute that has nothing to do with contract and not incorporated by the employment letter nor the statutory conditions of service, while there is another limitation statute [the LA] that is directly applicable to contracts with longer limitation periods. It is like reading an extraneous mater into a contract. It is as if the law deliberately sets out to trap the public servants. In the South African case in casu, S. 113(1) of the Defence Act [44 of 1957] was struck down because, the provision gives no discretion for the courts to extend time in deserving cases and the six month was considered unreasonably too short when compared with other comparable limitation statutes in the polity, just like between the POPA and the LA in Nigeria. 

Is S. 2(a) of the POPA reasonable and fair when it takes away completely the courts’ discretion to extend time in deserving cases and there is no other advanced democracy that has such ambiguously worded and restrictive statute against the rights of public employees to institute actions against their public employers? No. It is unreasonable and unfair not only because of its excessively short limitation period compared to S. 7(1)(a)-(b) of the LA, but also because of its deceptive and misleading nature, as to whether it is really applicable to contracts; a situation which the contra proferentem rule frowns at. It is unfair and against international best practices in labour relations for the short grace of three months it gives and also, its unclarity as to whether it applies to contracts of statutory employment, in the face of another statute that clearly applies and with better grace period. Is it reasonable and fair by introducing discrimination between public and private employees to the detriment of the public employees without any justifiable reason? Is it legitimate, suitable, necessary, fair, reasonable and in accord with international best practices to treat unequally the public employer and the public employee without any justifiable operational requirement, as all the countries that did away with the like of POPA have confirmed that there is no operational requirement for it? The answer is No. Nigeria ratified ILO C111 and by virtue of S. 254C-(2), ILO C111 is directly enforceable and forbids discriminatory application of law within the same class of people [workers] and S. 254C-(1)(g) of the Constitution also forbids discrimination in all its ramifications in employment and labour relations in Nigeria. By the combined effects of the foregoing provisions with S. 254C-(1)(f)-(h), the answer is capital NO.

There is no operational justification for the three months. Regarding loss of evidence by public bodies, often touted as the benefit for the continued existence of S. 2(a) of the POPA, when it comes to contracts of statutory employment, which is always written, because termination of statutory employments and other statutory employment disputes are done in writing [termination letter] and the procedures for discipline [queries and panels] are also done in writing, while the rules and regulations containing the terms and conditions of service and disciplinary procedures are in writing [statutes or byelaws], there is no basis to bring up the issue of loss of evidence to safeguard the application of S. 2(a) of the POPA to contracts of statutory employments. 

Additionally, the question is, since the courts have held in the expansive school of thought that the POPA does not apply to specific contracts with private individuals but only to contracts with public employees and by that, the private contractors have the privilege of six years of the LA: why would government departments lose evidence in respect of their own employees within the short period of three months but not in respect of private contracts for a whopping six years, which is 24 times of the short period allotted public employees, who, as I have shown in this decision, is also in a specific contract with the government? The logic does not add up. Any defence to the allegations of failure to pay pension and gratuity is easily proved too, because, payment is done via bank, which statement of account is always available for the public department to prove payment. 

The right to pension and how it is calculated or any reason why a public employee might not be entitled is statutory. As such, the evidence is perpetually available and likewise, virtually all evidence in all cases of public employment disputes and could be tendered by any public official at any time, as the rule of hearsay is not applicable to witnesses for corporate bodies – Aladum v. Ogbu (2023) 9 NWLR (pt. 1888) 57 (SC) and S. 104 of the Evidence Act relating to CTC. So, S. 2(a) of the POPA is not necessary in any way to safeguard public department’s interest in any form in statutory employments. Nothing is lost therefore if it is not applicable to contracts of statutory employment like all other contracts. Regarding the issue of distraction, if the public authority is not distracted by the six-year time limit the private contractors have against it, why would six years by its staff distract it? Similarly, if, as contained in the proviso to S.(2)(a) of the POPA,  an incarcerated person is exempted from the dragnet of the POPA for whatever length of time he used in prison and the freeze time would only begin to count after his release and would lapse three months next his release, where would the public authority get evidence to prosecute their defence, assuming the ex-convict came out of prison ten years later and filed his suit? The proviso is self-contradiction. This shows clearly that loss of evidence does not add up as a good reason for the usefulness of the POPA. If public department could keep its record for that long period when it did not even know the person was in prison and would come out to file a suit, why not in respect of all cases? Stale or frivolous or speculative lawsuit is also unwittingly nullified as a good reason for the existence of the POPA by this proviso. Applying the POPA to statutory employment is therefore both unreasonable and disproportional and totally unjustifiable. And a suit cannot be considered stale within three months when the employee is still recovering from the shock of premature disengagement[9] while another statute, S. 7(1)(a)-(b) of the LA, in similar circumstances did not consider a suit stale until after six years grace period.

With the ambiguous provisions of S. 2(a) of the POPA, it is unfair to maroon public officers to the overtly short period it prescribed in the face of S. 7(1) of the LA applicable to all forms of contracts, including private and statutory employment contracts. Determining whether S. 2(a) of the POPA is too short and therefore, interferes unfairly with right of access to court, is therefore, first and foremost, a question of comparative analysis with similar statutes within the municipality and extra-territorially from comparative jurisdictions. South African Constitutional Court in Leach Mokela Mohlomi v. Minister of Defence [supra] measured the six months in S. 113(1) of the Defence Act against other limitation statutes that grant far longer limitation times in South Africa, amongst other parameters, and concluded that, it was too short. Measured within the Nigerian municipality against S. 7(1) of the LA, which gives 6 years and SS. 12 of the NNPC Act and 83(1) of the NRCA, which both give 12 months, three months is definitely too short and amounts to unreasonable interference with the right of access to courts, and I so hold.

NNPC is a huge government parastatal, which lays the golden eggs for the Nigerian economy and could therefore be said to need the highest protection against the touted stale, frivolous and speculative litigations, yet it still grants suitors 12 months, while S. 7(1)(a)-(b) of the LA applies also to govt departments on contracts and grants 6 years. It could be seen that S. 2(a) of the POPA is unjustifiably and unreasonably too short and amounts to unjustifiable infraction of the right of access to courts and at the same time, infringes the right against discrimination in employment relations and the right of equality before the law – S. 36(1)(a), 254C-(1)(f)&(g) of the Constitution and ILO C111. If preventing frivolous lawsuits, speculative and stale lawsuits are the goals, the POPA has monumentally failed in these, since it is the most litigated statute in the annals of adjudication in Nigeria, going by the sheer volume of its turnover annually from all the three tiers of the superior courts in Nigeria. Why? This is because, since human spirit abhors repressiveness and injustice, they keep resisting the unfairly short period imposed by the POPA against their right of access to courts. More particularly so, since filing suits within three months does not prevent speculative/frivolous lawsuits. It means these goals have failed woefully and the solution is to grant adequate time for access to courts by declaring the POPA null and void for constituting hindrance to access to courts.    

We also have the large private multinational corporations that have more staff than the government, yet the LA is applicable to them with its 6 years grace period and they are still thriving. They are not complaining of loss of evidence or witnesses compared to government that has better facilities to secure its documents and compel witnesses to testify for it. And if the argument is that these multinational private corporations or big national private corporations have a right of choice of not taking risky undertakings that could frequently land them in trouble, a claim that has no scientific basis anyway, the fact that virtually all established democracies with better literacy and awareness level of citizens to their legal rights, have abolished the like of POPA very long ago without regret, is a pointer to the fact that, such argument is a ruse. And that such argument is a ruse for Nigeria has been established by the fact that, at least, three states [Abia, Ebonyi and Rivers States] have abolished their state versions of the POPA without regret for almost two decades. The only established democracy which I know to still be harbouring the like of POPA in its statute books is Malaysia – the Public Authorities Protection Act, 1948 – and it has increased the grace period to 36 months: three years. Most prominent African countries that still had similar statutes had their courts invalidate them as unconstitutional. That is what his Lordship Majanja J. in Kenyan Bus Services Ltd & Anor v. Minister for Transport & 2 Ors (2012) KEHC 2402 (KLR)[10] had in mind when he held that: 

“The general worldwide consensus is that a shorter limitation period for the state cannot be justified. The reach of the Government is far and wide and in an era of accountability or transparency ushered in by the Constitution, the State must abide by the same standards required of mere mortals.”

 

Being against international best practices, unfair and discriminatory, the POPA cannot stand under the present constitutional configuration. To further show the incongruity of the POPA as unfair labour practice, it is necessary to point out that, not all employments with government departments or public authorities or bodies, have statutory flavours – Iyase v. UBTHMB (2000) 2 NWLR (Pt. 643) 45 (CA) and Igwilo v. CBN (2000) 9 NWLR (Pt. 672) 302 (CA) 332, C. In such statutory employment without statutory flavour, the public officer-employee remains a common law employee, though, a public officer, but suffers the double jeopardies of not enjoying the benefits of the six-year limitation period granted in private common law employment but the disadvantage of the overtly short three-month grace of S. 2(a) of the POPA and at the same time, his employment is not covered with statutory flavour! This incongruous outcome of unwarranted discrimination between two sets of public officers working in the same workplace shows clearly that, the POPA was not designed to apply to any contract at all, including employment contracts of public officers and more particularly so, in the face of S. 7(1)(a)-(b) of the LA because, were it so, it would have seriously infringed S. 254C-(1)(f)&(g) of the Constitution and ILO C111. 

Besides, most public authorities have statutory provisions for service of pre-action notices before suits could be commenced against them. These periods of notices are not excluded in the calculation of the moratorium of three-month created by S. 2(a) of the POPA! Also, public bodies normally have provisions for exhaustion of internal dispute resolution mechanisms before going to court; and these periods are also included for public employees in the calculation of the grace period of three months in POPA! For example, OAU Ile-Ife v. R.A. Oliyide Sons Ltd (2001) 7 NWLR (Pt. 712) 456 (CA), 472, B-C shows that S. 46(1) of the Obafemi Awolowo Act [OAU] Act stipulates three-month pre-action notice, while the same OAU will still be entitled to the dragnet of S. 2(a) of the POPA! 

How are the incongruous right infringing situations created thereby to be reconciled? Is the claimant to comply with S. 46(1) of the OAU Act and be barred if the dispute could not be settled and the claimant now filed action in court after the three months? And note that the courts have held in Nigeria that the requirement of pre-action notice does not violate right of access to courts and that negotiations that do not lead to settlement or unequivocal acknowledgment of fault do not freeze limitation periods from running – RCC (Nig.) Ltd v. Buratto (1993) 8 NWLR (Pt. 312) 508 (CA) 514, E-F! Government departments in Nigeria have often deviously employed this to trick their victims not to file suits on time to take advantage of the situation, all because the grace period is known to be too short[11]. A case of using a statute as an instrument of fraud, which equity and SS. 254C-(1)(f) of the Constitution and 13&15 of the NICA forbid – Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) 414 (SC) and BAL Co. Ltd v. Landmark Univrsity (2020) 15 NWLR (Pt. 1748) 465 (CA) 491, D.

Even where the period of pre-action notice is a month, to include the one month in the calculation of the three months grace period in the POPA, means the Court allows the public department dishonestly to grant only two months, instead of the three months touted in the POPA and also dishonestly barred the victim in the case of three-month pre-action notice, by deliberately creating two simultaneous impossible situations to comply with! This type of situation shows clearly that the POPA is unreasonable and directly bars right of access to court through a disguised means. Assessing a similar situation in Kenya, the Kenya High Court held in Kenyan Bus Services case [supra] that because, S. 31 of the [Kenyan] Limitation of Actions Act [LAA] gives the Kenyan courts the power to extend the grace periods in all lamination laws, which include S. 3(1)&(2) of the [Kenyan] Public Authorities Limitations Act [KPALA], S. 3(1)&(2) of the KPALA was saved but not so with S. 13A of the Government Proceedings Act [GPA], which had no room for extension of time. 

S. 3(1)&(2) of the KPALA provides for 12-month grace for tort actions against government and 3 years for contract actions against government. The Kenyan High Court held that the provisions are not violative of S. 48 of the Kenyan Constitution 2010, which guarantees the right of equal access to justice because, it grants the courts discretion to extend the times but that, because S.13A of the GPA, which provides for mandatory 30-day pre-action notice without the discretion of courts to extend the time or waive it in deserving cases, it was violative of Art 48 of the Kenyan Constitution 2010. This decision was upheld by the Kenyan Court of Appeal, though in obiter, in Joseph Nyamamba & 4 Ors v. Kenyan Railways Corporation (2015) KECA 181 (KLR)[12]. It should be noted that the Kenyan High Court in Kenyan Bus Services case [supra] did not uphold the case made about the discriminatory nature of these statutes. However, it should be noted too that the Kenyan Constitution has no equivalence of S. 254C-(1)(f)-(h)&(2) of the Nigerian Constitution nor the equivalence of the POPA and its discriminatory effects on statutory employees, compared to other categories of employees. Thus, the two situations are distinguished to hold that discrimination is found against the POPA in Nigeria.

The South African Constitutional Court had the occasion to pronounce on the constitutionality of simultaneous requirements of pre-action notice and special limitation period in Mohlomi’s case [supra]. It held that S. 113(1) of the South African Defence Act, which requires both the issuance of one month pre-action notice and simultaneously bars the action after six months, was violative of S. 22 of the South African Constitution because, the grace period of six months was too short  and it did not grant the courts discretion to extend time, more particularly so, in the face of other statutes with longer limitation periods and conditions in the same polity thus, on comparative basis, the disadvantages of S. 113(1) of the Defence Act were disproportional to its objectives and thus, infringed the right of access to courts. Note that the period of six months was considered too short in South Africa compared to the doubtful three months in Nigeria. S. 22 of the South African Constitution tersely provides that: “Every person shall have a right to have justiciable disputes settled by a court of law or, where appropriate, another independent forum.” These provisions are not even as good as the provisions of SS. 6(6)(b) and 36(1)(a) of the Nigerian Constitution in the preservation of the right of access to courts. Yet the South African Constitutional Court relied on it to strike down S. 113(1) of the Defence Act as constituting hindrance to right of access to court. 

S. 6(6)(b) of the Constitution vests the judicial powers in the superior courts to determine any dispute between persons in Nigeria in absolute terms, only subject to Chapter II of the Constitution relating to fundamental objectives and directive principles of state policy and, questions relating to the competence of any authority on the laws made on or after Jan 15, 1966. S. 36(1)(a) of the Constitution grants the right to fair hearing [mark it] on suits brought by any person against both the state and individuals, within a reasonable time in a court or tribunal established and constituted in a way that its independence and impartiality are guaranteed. Clearly implied in S. 36(1)(a) of the Constitution, is that the right to fair hearing, impartiality and independence of the judiciary, is a product of equality before the law, which translates to equal access to justice for all. This conclusion is unassailable when S. 36(1)(a) is construed with S. 6(6)(b) of the Constitution. Therefore, without reasonable justification, government departments have no right above the citizens on the issues of access to courts and are not entitled to the special protection of S. 2(a) of the POPA but only to the general protection for all against stale suits under the LA.

The Supreme Court in Ibrahim v. JSC construed the phrase “any person” in S. 2(a) of the POPA, as inclusive of public departments and authorities, just as natural human beings thus, bringing equality to bear between natural human and non-natural persons. Therefore, the Supreme Court impliedly confirmed the equality of persons: both public department-employers and the public human employees as persons, as well as the private persons. Being persons as normal citizens, the public officials and public departments cannot eat their cakes and have it. Having been made to enjoy exactly equal right as person with human beings, they must be treated equally like the ordinary citizens and cannot therefore have special privilege. Unjustifiable inequality of access to courts is therefore unlawful in Nigeria. 

There is therefore no basis for the discriminatory treatment of the public department/authority-person from any other person. S. 17(1)-(2) of the Constitution, which grants equality before the law and easy access to courts, though, ordinarily non-justiciable, is made justiciable by the combined provisions of Arts 2, 3, 7 & 15 of the ACHPRA, domesticated in Nigeria and Arts 1, 7, 10, 21(2) & 23(1) of the UDHR, binding on Nigeria – Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228 (SC); AG Lagos State v. AGF (2025) 5 NWLR (Pt. 1984) 43 (SC) 101, B-D and, Olafisoye v. FRN (2004) 4 NWLR (Pt. 864) 580 (SC) 664, E-G. S. 2(a) of the POPA therefore interferes with the rights of equality before the law and easy access to courts. A person [public employee] cannot be said to have easy access to court when he does not have enough time to consult lawyer, prepare and file his case in court compared to his opponent [public authority] or compared to other citizens [private citizens]. 

The POPA has no provision for courts’ discretion to extend the grace period of the doubtful three months that it provides. Though, admittedly, the Nigerian Constitution has no equivalence of Art 48 of the Kenyan Constitution, which directly provides for equal right of access to court but the provisions of SS. 6(6)(b), 36(1)(a), 254C-(1)(f)-(h) & (2) of the Constitution, when construed with Arts 8(1)&(3) of the ILO C158; Arts 1, 7, 10, 21(2) & 23(1) of the UDHR and; Arts 2,3,7&15 of the ACHPRA together with S. 17 of the Constitution, better effect is achieved. This is particularly true, borrowing a leave from the South African Constitutional Court’s construction of S. 22 of the Southern African Constitution, which is not even as protective of the right of access to court as the Nigerian Constitution with respect to equality of right of access to courts, to import right of equal access to courts. A Constitution is an organic instrument that must be broadly construed to accommodate more rights to the citizens – Agbakoba v. The Director, SSS (1994) 6 NWLR (Pt. 351) 475 (CA) 499-500, H-A.       

Besides, Art 9(1) of the ILO C158 says, a court of law trying employment cases, has the duty to take into consideration other circumstances relating to the case. This plainly implies, when construed with Art 8(3) of the ILO C158 thereof, that the NIC must take the surrounding circumstances into consideration to determine the reasonability of the limitation period involved. And because this is a constitutional mandate sanctioned by S. 254C-(1)(f)-(h)&(2) of the Constitution, no other statutory provision can interfere with the ascendancy of this constitutional duty. The Court of Appeal underscored this in Sahara Energy Resources Ltd v. Oyebola [supra] when it quoted Arturo S. Bronstein with approval to the effect that:

“The goal of labour law is to ensure that no employer can be allowed to impose – and no worker can be allowed to accept – conditions of work which fall below what is understood to be a decent threshold in a given society at a given time. Thus labour law is not just a means of regulating the exchange between the labour and capital as civil or commercial law does with respect to contracts; rather, it is a means (indeed it is the principal means) to operationalize what the International Labour Organization (ILO) nowadays defines as; ‘decent work’, which in addition to protecting the worker, call for the respect of democracy in overall labour relations, including at workplace.”

 

Though, the ILO C158 is not ratified by Nigeria, it is nonetheless applicable with full force in Nigeria, as a source of international best practices in labour relations by virtue of S. 254C-(1)(f)-(h) of the Constitution. That is the way with industrial/labour courts around the world. The NIC explicated this in Engr. Luke Mmamel v. IMT & Ors thus[13]:

“In virtue of this, the NIC is obliged to apply international best practices in the resolution of cases brought before it and international labour standards, which are contained in ILO treaties or conventions and other instruments and by these, the NIC can apply the labour standards contained in these treaties, whether ratified or not, as veritable examples of international best practices, to expatiate issues brought before it and this practice is not limited to Nigeria. It is a general practice applicable to labour courts around the world. For example, the ILO reported[14] that the Industrial Court of the Republic of Botswana in Mapho C. Ganelang v. Tyre World Ltd, despite the fact that Botswana had not ratified ILO C158 – Termination of Employment Convention, applied it thus:

‘I am of the firm view that the Respondent’s actions, in casu, fell foul of international labour standards in labour law. The Termination of Employment Convention No. 158 of 1982 ‘(C158)’ is in point. Under its equitable jurisdiction this Court can bring the principles of Convention C158 to bear in this case. This the Court can do so because the Court of Appeal has held that this Court may, under its equitable jurisdiction apply international labour standards to assist it reach a proper determination of issues it is called upon to determine.’

The NIC has expectedly taken the same position as its sister, Industrial Court of Botswana, as it too, like all labour courts around the world, has equitable jurisdiction granted by SS. 254C-(1)(f) of the Constitution and 12-15 of the NICA. Let me cite just one example of how the NIC applied the same ILO C158, which Nigeria has also not ratified. In Shell Petroleum Development Company of Nigeria Ltd v. The Minister of Petroleum Resources & Ors[15], His Lordship, Kanyip, HPNICN, quoted the authority of Arturo S. Bronstein[16], a highly qualified publicist, to utilise the ILO C158, a Convention, Nigeria, like Botswana, has also not ratified:

‘Nigeria may not have ratified the International Labour Organisation (ILO) Termination of Employment Convention, 1982 (No. 158), the Convention that promotes security of employment globally. And I must acknowledge that ILO standards, that is, Conventions, Recommendations and Codes of Practice, whether ratified or not, ‘not only reflect a certain universal wisdom, they also enjoy a social legitimacy that would seem hard to challenge.’

The labour standards in these unratified conventions could also be utilised as general principles of international labour law or customary international labour law by virtue of Art 38(1)(c) of the ICJ Statute, once the benchmark of 15 years of general application is met; and the ILO C158, which came into being in 1982, has far surpassed the benchmark, having been consistently and universally applied across the world for the past 42 years.”   

 

 S. 254C-(1)(h) of the Constitution gives the NIC the exclusive jurisdiction to apply international labour standards from which international best practices are gleaned without the requirement of ratification. Judicial decisions of established democracies, especially those with similar jurisprudence, are also veritable sources of international labour standards on international best practices. The Kenyan and South African judicial decisions in casu are therefore binding on the NIC on this issue of the unconstitutionality of S. 2(a) of the POPA. And let me say that the Supreme Court has itself acknowledged that S. 2(a) of the POPA is an instrument of unmitigated cruelty and unjustifiable discrimination. In Adigun v. Ayinde (1993) 8 NWLR (Pt. 313) 516 (SC) 563-567, H-A the Supreme Court observed on the cruelty of S. 2(a) of the POPA in these words:

“The defendant has succeeded on technicality, which is not only undeserved but also exposes the injustice in the protection of the public officer. It is unconscionable that a public officer should be deprived of a remedy he ordinarily would have enjoyed merely because the injury was caused by another public officer, where both were lawfully carrying out their lawful duty. Again, the public officer was unable to bring action within the prescribed period because the defendants were undertaking his treatment in accordance with his conditions of service. I think the 2^nd and 3^rd respondents should review the case with especial sympathy in the interest of public service and the morale of serving officers, and pay the plaintiff whatever is due to him.”

 

The Court of Appeal in Nwaka v. Head of Service, Ebonyi State (2008) 3 NWLR (Pt. 1073) 156 (CA) 163 observed on the unconscionability of the POPA in the following mournful words:

“It appears…the Public Officers Protection Act is providing an undeserved shield for public officers against ordinary citizens who as it were, may be ignorant of the provisions of the Act. It is my humble view that laws should operate to enhance the lives of citizens and not to deprive the citizenry the opportunity to ventilate his grievances especially where there is an infraction of their entitlement and constitutional right.”   

 

Citizens are ignorant of the POPA because, it is too remote to contracts to be thought to apply to contracts in the face of S. 7(1)(a)-(b) of the LA. See also Nwako Aviasu v. H.O.S. Ebonyi State (2008) 3 NWLR (Pt. 1073) 237 at 177.  In Adigun v. Ayinde, Belgore JSC [retired] concurrently said the law had been cruel to the victim-appellant. The Supreme Court had felt bound to dismiss the matter, even though, agreeing that denying the victim access to court was monumental injustice because, it felt its hands were tied by S. 2(a) of the POPA and that; it could not take extraneous matters, which it christened sentiments, into consideration to decide otherwise. It is very clear by the Supreme Court’s denunciation of the POPA in Adigun v. Ayinde that it agrees the time limit in the POPA was too short for access to court. That was a good reason to conclude that the POPA’s too short limitation period and discriminatory ambience were hindrance to right of access to court like the Constitutional Court of South Africa did in similar situation and struck it down. Is denial of access to court by too short limitation period and discriminatory policy really sentimental in the face of SS. 6(1), (6)(b), 17, 36(1)(a) of the Constitution? I do not think so with the utmost respect.  

Well, the Supreme Court may not have had the power now conferred by S. 254C-(1)(f) & (g) of the Constitution to take into consideration unfair labour practices, international best practices and the need to eschew discrimination in employment relations in its decisions of cases brought to it. But that is not the case with labour courts around the world, being foremost, economic courts. Labour courts all over the world are not concerned only with just the dry rights of parties directly involved in the matters, but as a matter of public policy, must take into consideration the implications of its decisions on the overall economy, the workforce and the larger society, and as such, issues of objective fairness, injustice, suffering, mental and psychological trauma, and impacts on the overall economy, in relation to the parties directly concerned and the larger economy are germane.  S. 10(3)(a)-(b) of the Industrial Relations Act Trinidad and Tobago[17] [IRATT] vividly exemplifies this:

“(3) Notwithstanding anything in this Act or any other rule of law to the contrary, the Court in the exercise of its powers shall – 

1. Make such order or award in relation to a dispute before it as it considers fair and just, having regard to the interests of the persons immediately concerned and the community as a whole.
2. Act in accordance with equity, good conscience and the substantial merits of the case before it, having regard to the principles and practices of good industrial relations.”

 

These are transposed to Nigeria by S. 254B-(3)&(4) & 254C-(1)(f)-(h)(&(2) of the Constitution, together with SS. 13, 14 & 15 of the NICA. The implication being, the NIC takes such issues, as socio-economic issues, objective fairness and international best practices into consideration in reaching a decision, and any statute or policy that stands in the way, is knocked down by the forces of SS. 254C-(1)(f)-(h)&(2) of the Constitution and 12-15 of the NICA. It means, for NIC, issues of unfairness, unreasonability, disproportionality, community welfare and international best practices are not extraneous, but unalloyed fundamental employment rights of all workers/employees and the larger communities without exception in Nigeria. The Supreme Court has clearly stated in unambiguous words in Adigun v. Ayinde that S. 2(a) of the POPA incentivises extreme cruelty by reason of the overt shortness of its grace period and the discrimination and inequality before the law it engendered and that, it is inimical to the public service interests and the morale of public servants. In Nwaka’s case, the Court of Appeal found that the POPA provided undeserved shield for public officers. The concomitance of all this, is that S. 2(a) of the POPA is unreasonable, unfair, inequitable, discriminatory, created inequality before the law and, not in accord with international best practices. And I so hold.

Going by the example of international best practices engendered by S. 10(3)(a)-(b) of the IRATT and S. 254C-(1)(f)-(h)&(2) of the Constitution and the Supreme Court’s verdict on S. 2(a) of the POPA in Adigun v. Ayinde [supra], could it be said that S. 2(a) of the POPA promotes fair labour practices in Nigeria and the economic wellbeing of Nigeria? Could it be said to be in tune with international best practices? The answer to both questions is capital NO. And the effect is that it is null and void, and I so declare. With the doctrines of reasonability and proportionality which I have brought to bear on the assessment of the POPA, a municipal statute, for its constitutional validity, I am of the opinion that, even under the previous constitutional arrangement before the ascendancy of the Third Alteration Act, S. 2(a) of the POPA could have been declared null and void and struck down long ago because, it is clear that it did not meet any of the four-prong tests of proportionality. Had the Indian judicial approach to constitutional democracy with well-structured inbuilt doctrine of proportionality as the objective yardstick of constitutionality of any statutory provision been fully adopted by Nigerian judiciary too, striking down the POPA would not have eluded the Nigerian judiciary for so long.

It is worthy of note that the British colonialists, who transposed the POPA in a worse form to Nigeria, from its Public Authorities Protection Act, 1893 [PAPA] in 1916, by widening its inimical dragnets, repealed the PAPA since 1954, but did not repeal it in Nigeria before they left in 1960, and yet, we are still upholding the worse form of it transposed to Nigeria, purely to facilitate the degrading attitude of the colonialists to the rights of Nigerian citizens, a whopping 76 years after in 2025, even when virtually all the contemporary African countries have either legislatively repealed similar colonial legislations in their statute books or their courts have proactively invoked their constitutions to judicially nullify them, as enumerated  in Kenya Bus Service case [supra] and South African case of Leach Mokela Mohlomi v. Minister of Defence [supra]! 

The situation in the established democracies, which have all repealed the likes of POPA in their statute books and replaced them with equal limitation rights for government and citizens, is additionally much better in terms of citizens’/employees’ awareness of their legal rights and limitations because, there are government well-structured and functional institutions [ACAS in Britain[18]] in place that make employees aware of their rights and yet, these countries still found it necessary to repeal the likes of POPA while Nigeria, that is riddled with illiteracy and acute absence of structured institutions that attend promptly to workers’ right issues, still retains the anachronistic POPA. This is patently unfair labour practice and also contrary to international best practices.

To show the discriminatory intent of the colonialists and the fact that they actually intended to gag access to justice with the POPA, their own PAPA, provided for six months – S. 1(a) – whereas, the colonialists, deeming citizens of their colony (Nigeria) less human, gave Nigerians, a far illiterate people, mere three months! And worse still, hear this about the English treatment of their own people with regard to the injustice of the PAPA about the same time that they paid no heed to Nigerians: 

“The English Act of 1893 provided for limitation period of only six months. In 1939 this period was increased to one year when the substantive parts of the 1893 Act were repealed and reenacted as s 21 of the Limitation Act 1939. In 1954 the special protection enjoyed by public authorities in England was abolished by the Law Reform (Limitation of Actions etc) Act 1954. Thus in England today public authorities and their servants are subject to the same limitation periods as ordinary individuals[19].” 

 

The “today” referenced in the excerpt is 1954: 71 years ago. First, the PAPA was originally six months in Britain but transposed to Nigeria as POPA with a mere three months. The PAPA was made applicable to only public officers while the Nigerian version was applicable to both public servants and public authorities. In 1939, the British colonialists, in their home country, considered that the PAPA, with its original six months grace period, was unjustified interference with the right of British citizens to access court by reason of the shortness of the six months, and had it increased to 12 months and subsequently, had it abrogated all together in 1954. All this while, England left the colony with the POPA it considered a hindrance to access to court in its own country, to reign on in its colony, even in a worse form! What other grounds prove better the arbitrariness of the POPA in Nigeria and the fact that, it was knowingly designed to block access to court and justice than this?  From the above, it is clear beyond disputation that the POPA was enacted in Nigeria not for public good but for a malevolent motive, disguisedly couched, to prevent access to justice. 

I am strengthened in the foregoing inference by the fact that, in all my research on the POPA, I have not read in a single place, where the court or academic writer referred to something like Hansard or explanatory note or the like of any external historical source to show the existence of the purposes our courts created in Nigeria to justify POPA’s existence. Nobody has ever shown the evidence of any debate by the British colonialists before they transposed the PAPA in a worse form to Nigeria. It means all these excuses invented by the courts for its existence in Nigeria were pure imaginative inventions that the promulgators were reasonable and had public good in mind, but the above have shown that this was not so. In Uduma v. Attorney-General of Ebonyi State & Ors[20] (2013) LCN/6216 (CA) the Court of Appeal, interpretating SS. 18, 42 & 44 of the Limitation Law Ebonyi State, 2009 [LLES], which it held, had repealed the POPL, Eastern Nigeria 1963, as applicable in Ebonyi State, and replaced it with 5 years for both government and the citizens alike, made the following apt remarks about the discriminatory nature of the POPA:

“The import of the above provision, as rightly suggested by the learned counsel for the Appellant, is that Limitation of time in actions against Public Officers should be calculated as the same period of Limitation against private individuals.

In other words, the discrimination in the calculation of limitation period which was previously in favour of Public Officers has been removed.

The Public Officers Protection Act (Law) gave Procedural Protection to Public Officers as a compliment to the colonial vestige of ‘king can do no wrong’. Since the sovereign or Government would not accept vicarious liability for torts committed by its servants, the officers that would now be individually liable must be safeguarded.”

 

From the above excerpt, apart from the issue of the discriminatory nature of the POPA, the Court of Appeal pinned down the fact that torts were the fulcrum of the POPA and not contracts and that; the POPA was a vestige of the king can do no wrong and thus, has the aim of restricting access to justice. Uduma v. AG Ebonyi State [supra] also showed that SS. 42 & 44 of the Limitation Law Abia State, Cap. 24, Laws of Abia State Vol. II, 1998-2000 had also repealed the POPL Eastern Nigeria 1963 in Abia State, while Cap. 80, Laws of Rivers State 1990, as confirmed by SPDCN Ltd v. Amadi (2010) 13 NWLR (Pt. 1210) 82 (CA) 119, D-E, had also repealed the POPL, Eastern Nigeria 1963 in Rivers State. What comes out clean from the above is that, first the POPA serves no utilitarian purpose to government and the public. It is purely to give undeserved shield to public officers, otherwise, the three states would not have removed it from their statute books. Secondly, in Uduma’s case, the Court of Appeal confirmed that the POPA was discriminatory and also confirmed that, the reason for its promulgation was actually to interfere with the right of access to courts and not all the excuses that the courts have invented to justify it in Nigeria. In fact, to show the discriminatory nature of the POPA, S. 42 of the Limitation Law, Ebonyi State 2009 underscored this:

“Notwithstanding anything contained in any other enactment or rule of law to the contrary, all actions to which this law applies howsoever arising against the state or against any State Public authority or officer thereof or any person acting in the stead of such public authority or officer thereof, for anything done or intended or omitted to be done in pursuance or execution of any such act, duty or authority or in respect of any neglect or default in the execution of any such act or authority shall be commenced within the same period of time after the cause of action arose as if such action were brought by or against a private individual.”

 

S. 18 of the LLES made the limitation time 5 years while S. 44 did not list contract as one of the exempted causes of action. The italicised portion marked it explicitly that the discrimination of the previous law [the POPL] was wrong and unfair and thus, the mischief eschewed in the new law. And the fact that the English, knowing fully well the level of illiteracy in Nigeria at the time [and up till now], originally gave themselves six months in England with their high level of literacy then, and had, first to increase the grace period to 12 months in 1939, and  finally repealed the statute in 1954, but yet left the POPA in Nigeria and gave Nigerians just mere three months, half of what they originally gave themselves, and with worse dragnet extended to both public officers and public authorities/institutions, is a textual confirmation of the malevolent intent, as a statute, meant to hinder right of access to court but merely disguised as limitation period. They knew the three month was largely impracticable. It shows that from inception, the POPA has a discriminatory policy with malevolent intent that relegated the citizens of Nigeria to the British colonial officials and their minions. When a limitation period is too short, it in effect, indirectly bars right of action, and we have seen in action that, that is what the POPA achieved in Nigeria. 

The Nigerian courts never looked at the issue from this prism.  And, if the POPA was an offshoot of the anachronistic doctrine that the king or queen could do no wrong, and therefore, of the nature of the Petition of Rights Act, which was also an offshoot of the same doctrine, it cannot escape the damnation that it sets out to prevent right of access to courts by its disproportionately short period and discriminatory ambience. The Supreme Court in Bakare v. AGF (1990) 5 NWLR (Pt. 152) 516 (SC), construing the effect of S. 6(6)(b) of the 1979 Constitution over the Petitions of Right Act held:

“The intendment of these provisions is to confer general jurisdiction on the courts established by the 1979 Constitution and at the same time provide access to the courts, so established, to persons who may have any contention on ‘all matters’ as between them and government or any authority or any person. In contrast, to these provisions of sections 3 and 4 of the Petitions of Right Act…which inhibit the taking out of a writ of summons against the Attorney-General intended, to some extent, to deny direct access to the courts… It is, therefore, obvious that the provisions of sections 3 and 4 of the Petitions of Rights Act are inconsistent with section 6 subsection (6)(b) of the 1979 Constitution…” [535, D-F]

 

S. 2(a) of POPA, with its unreasonably short time and discriminatory policy, is a barely disguised blockage of right of access to courts, especially if one considers the provisions of its S. 2(b)-(d), which imposes threat of punitive cost for unsuccessful litigations and the simultaneous insistence on given the public authorities enough time for possibility of settlement: within the same short three months! It must suffer the same fate with its sister Petition of Rights, both which are offshoots of the anachronistic doctrine that the king does no wrong. And, if there was no authority within our Constitution before the ascension of the Third Alteration Act in 2011 – a position not conceded, going by all the forgone authorities cited – to declare the POPA unconstitutional, illegal, null and void, with the ascension of the Third Alteration Act in 2011, that has changed, via S. 254C-(1)(f)-(h)&(2) of the Constitution, which gives the NIC the authority to declare unconstitutional, statutes constituting unfair labour practices and to impose international best practices in their stead. S. 2(a) of the POPA is incompatible with S. 254C-(1)(f)-(h)&(2) of the Constitution. 

Since Ebonyi State repealed the POPL in 2009, 16 years ago, we have not heard that the public service there suffered any disadvantage therefrom: ditto Rivers and Abia States. Rivers State is one of the most cosmopolitan and most viable states in Nigeria. It must be noted too that all the three levels of courts in Nigeria have roundly condemned the three months provided by S. 2(a) of the POPA, as unconscionable, but no court or academic writer has ever condemned the LA and the 6 years of the LA and its variants in all the states of the federation, ranging from 5-6 years. All academic writers too have, like the courts, without exception, roundly condemned the POPA and the shortness of the three-month provided by the POPA, as totally unjustifiable and have shown that all the excuses given by our courts to justify its existence in the statute books of Nigeria could not add up. The conclusion to be drawn from these is that, truly the POPA constitutes hindrance to right of access to courts and must be so declared by the courts. The POPA is all-round disproportionately injurious to public servants/workers and the citizens as a whole. 

To crown the uselessness of the POPA, the Nigerian Law Reform Commission[21] in 2015 submitted a report to the NASS to repeal it. Mr Kefas Magaji, the Acting Chairman of the Commission, in a seminar organised on the need for reform of the POPA, bemoaned the POPA as “the law made for the British colonial masters and had no justification in a democratic society[22]” thus, hinting at the racial segregation policy of the statute, which originally gave Nigeria three months against the six months for England, later increased to 12 months in 1939 and subsequently abolished in England in 1954, but all the while, retained in its worst form of three months by the colonialists in Nigeria, and still being retained in its worst form today, contrary to SS.  42 & 254C-(1)(f)&(g) of the Constitution!

What more do we need to ascertain the disproportional effect of the POPA in the polity, when a body specially created for that purpose, has confirmed in its thorough research that the POPA is inimical to access to justice and recommended its repeal. In similar vein, the South African Law Reform Commission also recommended the repeal of S. 113(1) of the Defence Act [44 of 1957], which was similar in effect to the POPA, and the South African Parliament was tardy, like the NASS, in carrying out the repeal. The Constitutional Court of South Africa, in Leach Mokela Mohlomi v. Minister of Defence [supra], took the gauntlet and struck it down as unconstitutional without waiting for the South African Parliament’s snail speed. With the present constitutional configuration in Nigeria, as I have already highlighted and will still do, our superior courts, especially the Supreme Court, have more than enough vires to strike down the POPA as unconstitutional.

Because of its extremely short limitation period, lawyers are put under intense pressure to draft and file processes for victims in the increasingly complex labour jurisprudence under the Third Alteration Act, compared to other citizens who have 5-6 years under the LA and the like in the states. The effect is that no lawyer ever pleaded the relevant ILO instruments and other international labour law instruments because of lack of time to research them with regard to the peculiar facts of the cases. So, it comes about that cases filed within three months are by this reason poorly prepared cases and thereby, technically become frivolous cases. An essential part of access to court is enough time for a victim to sort out his evidence, brief lawyer and, enough time for the lawyer to study and prepare the case for filing. Where the time is too short for these, indirectly, the victim is barred from access to court. 

The disadvantage also comes about too, that, the POPA effectively prevents the exploration of ADR mechanisms to settle disputes. As cases that are supposed to be settled are rushed to courts to avoid being caught in the dragnet of the POPA. Upholding the POPA in effect means, encouraging the courts’ dockets to be overfilled. And when you compare the 5-6 years, or even 12 months in other limitation laws with the fact that, the British who brought the POPA to Nigeria, at inception of their PAPA in 1893, had six months in their own version, which they later increased to 12 months, the fact that the three-month limitation period is disproportionately short and therefore, amounts to denial of access to justice, cannot be contested. The fact that the courts have created several exceptions to the POPA is good reason to show that, there is no basis for the broad interpretation given to it to discriminate against public employee simply because, they are in statutory employment. By this, the courts have themselves discriminately applied the law without operational justification against the principle of strict construction of expropriatory statutes, which the POPA has become in these circumstances. This is unfair labour practice.

To further show the discrimination against the citizens in favour of public authorities induced by the POPA, despite holding in Adigun’s case that, taking advantage of the POPA was cruel, unconscionable and was an injustice, which was inimical to the morale of public servants, the Supreme Court was compelled to still apply the POPA to bar the case of a public servant, who sustained serious injury in the cause of government work from another co-worker and was incapacitated by that reason to file a suit within three months because, he was in the intensive care in the hospital for the injuries and was discharged paralysed. And the same public authority-employer took him to the hospital and was therefore a witness to the fact that, he was incapacitated to sue within three months. The same public authority terminated his appointment because, he had become useless to the department and, the same government refused to pay his terminal benefits! The same government raised the POPA when he sued to claim his terminal benefits! 

Also, in Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258, a class teacher injured the student in the eye, and she was taken to several hospitals in the course of the three months next and beyond; but eventually lost the eye. As a minor, she sued through her mother. The public authority raised the POPA, and the action was held to be statute-barred, just like that! Compare these to Kwara State Pilgrims Welfare Board [supra]. Government was swindled by its employee, who kept for himself one of the bags of money he was supposed to deposit in the bank for the Government. The government filed suit outside three months against him, for conversion of the money. He pleaded the POPA, the court created an exception in the government’s favour. It held that, the POPA could not apply to condone fraud and allowed the prosecution! But the same POPA was allowed to be used by public authorities to perpetrate frauds against victims in the cases of Adigun v. Ayinde and Ekeogu v. Aliri.

We can see that the law was not applied even-handed and that; it was a case of different justice for different folks. A law that makes the courts complicit in inequality before the law and the courts as instrument of perfecting fraud and injustice, deserves not to exist. That is the modern conception of constitutional democracy. The trend is that there is no basis for special treatment of government and its officials above the ordinary citizens, especially where there is no operational justification for such privilege. Since the Supreme Court concluded in Adigun v. Ayinde that S. 2(a) of the POPA was cruel and caused injustice, that was enough signal that it hindered access to justice because, those statements were inconsistent with access to justice. That holding was a confirmation of the unreasonableness and disproportionality of the POPA with respect to its touted advantages. 

And the facts that the said advantages could be achieved through alternative means, as has been shown in the cases of Rivers, Ebonyi and Abia States in Nigeria that have abolished the POPL, and even Britain which bequeathed us the POPA, had abolished it in their clime, yet thriving and the NNPC Act, a government department, has 12 months limitation period worded exactly like the POPA, and is still functioning, and S. 83(1) of the NRCA with also 12 months limitation period for the Railway Corporation, are a pointer to the fact that, there is no operational requirement for the unreasonably short period of the disproportionate POPA. We also note that the like of POPA has been abolished all over the world from England to Australia and Canada. The same wind is sweeping across Africa with their courts taking the lead to declare statutes like the POPA unconstitutional. I have already given the examples of Kenya and South Africa.

Granted that both conducts in the two instances of pleading the POPA in Adigun’s case and Kwara State Pilgrims Welfare Board were reprehensible, the effect is that, while the POPA will apply to defeat genuine claims by citizen-public servants against government, it will not apply to defeat genuine claims by government against citizen-public servants. In fact, the conduct of the government in Adigun v. Ayinde, apart from allowing government to practice chicanery and fraud on citizens, clearly violated S.159(2) of the 1979 Constitution, under which the case was decided, which provides that the terminal benefits of public servants must not be withheld, and currently violates S. 173(2) of the Constitution, which replaced S. 159(2) of the 1979 Constitution. The conduct will also now violate Art 12(a) of the ILO C158, which mandates the payment of terminal or invalidity benefits at termination, of which Art 8(3) gives the employee the grace of reasonable time to challenge the non-compliance, meaning the courts have the discretion to determine what is a reasonable time in accordance with the circumstances of the case – Art 9(1) of the ILO C158. It is clear that plaintiff/appellant in Adigun v. Ayinde brought his case within reasonable time in the circumstances of the case. All this, clearly implies that S. 2(a) of the POPA was incapable of being applied and was not applied, even-handed and therefore, offends S. 254C-(1)(f)-(h)&(2) of the Constitution, ILO C111, and SS. 13 & 15 of the NICA.

The fact that the government itself found it difficult to comply with the three-month grace in Kwara Pilgrim Welfare Board is a loud testimony that the three-month grace is impracticably too short and hinders the right of access to court. Had the court not created exception to save the case, the embezzler of public funds would have escaped and would have benefitted from his wrongdoing, just like the government benefitted from its wrongdoing in Adigun v. Ayinde and Ekeogu v. Aliri. Equity forbids a wrongdoer from using the instrumentality of a statute to benefit from his wrongdoing – Young Shall Grow Motors Ltd v. Onalaja (2021) 3 NWLR (Pt. 1763) 300 (SC) 319, C. And the conducts of the courts in these instances of unconscionable uses of the POPA, in not being even-handed between citizens and government in the application of the POPA, is a classic example of allowing a wrongdoer to benefit from his wrong and to use a statute as an instrument of fraud and inequality before the law and even discrimination amongst those it actually sought to protect. 

The fact that the courts have created several exceptions to the POPA is a good reason showing that there is no basis for the broad construction given it to discriminate against public officer-employees, thereby causing discriminatory application of the law between the employer and employee who are both public officers. This is a classic example of unfair labour practice. Again, to show the incongruity of the POPA, big private corporations have the normal 5-6 years of the LA/Limitation Laws of the States and yet, they are not complaining of losing evidence or witnesses. I am cognisant of the fact that limitation laws are considered beneficial and generously construed but that is when it is even-handed between litigants and not when it is discriminatory, ambiguous and clearly gives unjustifiable short grace to access court against a party to a suit which his opponent is not equally subjected to. In that case, it is expropriating and must be construed narrowly.

And we all know that public authorities could summon witnesses by subpoena to testify and that, public authorities normally keep documents longer than any other body/organisation/individuals and have better facilities for this. Where there are no deliberate sabotages, government documents rarely ever get lost because, government has better facilities to protect their documents. In fact, the invention of the excuse that the POPA seeks to save government from situation where documents are lost, is counterproductive in that, it indirectly encourages government to be careless with documents or to sabotage documents when there are cases against them. And such allegation is now raised in the extant case where the claimant claimed that her pension right is being sabotaged by the deliberate loss of her file in the government institution. So, it comes about that, there is no operational or organisational requirement for the extremely short grace period provided in the POPA. It therefore comes about that all the excuses given for the continued existence of S. 2(a) of the POPA and like laws in our statute books are sham. And the fact that three different states in Nigeria have actually abolished the POPA replica in their statute books for nearly two decades now without any problem completely destroys any lingering doubt about POPA’s disproportionate effects on the business life of Nigerians with government, especially public employees.

I wish to point out at this juncture that in the Hansard Report of Dec 13, 1932[23], the English Attorney-General [EAG] conceded that, were there proofs of the difficulties of people being shut out of access to courts because of importunities caused by hospitalisation beyond the limitation period of six months, he would readily concede to the proposal against the PAPA. The evidence which was not readily available in England in 1932 when the proposal was mooted is readily available in Nigeria from the Supreme Court case of Adigun v. Ayinde [supra], where a public department itself took its injured staff to hospital on emergency, and he was there for more than the three-month grace in the POPA, to the govt’s knowledge, and came out paralysed. Govt relieved him of his appointment because the accident rendered him useless to government but without paying his terminal/invalidity benefits. He eventually sued outside three months and the public authority raised the POPA against the suit. The same thing exactly happened in the case of Ekeogu v. Aliri [supra].

The issue was also raised against the PAPA in the Hansard Report in casu that public officers were in the habit of luring the victims in England with the hope of settlement, the negotiation of which dragged beyond the six months, at which point, they would declare that they were no longer ready to negotiate and would subsequently raise the PAPA against the suits brought by such victims. The EAG said there was no evidence. The evidence abounds in Nigeria. Adigun v. Ayinde is a classic example. The public authority took the victim to the hospital, even outside Nigeria. It is axiomatically implied that the victim and his family were lulled to relent from filing action promptly in court, reasonably believing that everything would be sorted out amicably, but the government turned round to deny the victim his entitlement on the basis of the POPA. The scenario therein constituted clear admission of the debt and ought to have grounded exception to the POPA. The Supreme Court described the government attitude in the case as unconscionable, cruel and unfair.  

The same thing happened in Ekeogu v. Aliri. There are uncountable similar cases in which the courts in Nigeria had deprecated the unconscionableness of the POPA. Though, I have not been able to lay my hands on further Hansard Reports, I am certain it is the eventual production of these pieces of evidence that eventually led to the total abrogation of the PAPA in England. The British parliamentarian-proponents of the repeal of the PAPA, who from their discussions, it is clear they were mostly lawyers, indicated that these instances of the unjustness of the PAPA were real and not hypothetical cases. They definitely would come back with concrete evidence, which led, first in 1939 to the extension of the limitation period to 12 months and, eventually in 1954, to the total abrogation of the PAPA when the Law Revision Committee in its Fifth Report concluded that: “there seems no very good reason why such cases should be given special treatment merely because the wrongdoer is paid from public funds” and the Lord Tucker’s Committee’s Report that it be repealed, was accepted and implemented by the British parliament.  

The issue of punitive cost was raised against the PAPA too in the Hansard debate in casu that it had the tendency to scare injured citizens from challenging public authorities, while citizens generally did not enjoy such rights against public authorities and the EAG argued in its support that, it was to discourage frivolous and speculative suits against public officers, but unwittingly pointed out that “nine cases out of ten the plaintiff does succeed”, translating to 90% of cases filed against public authorities, the victims won! Does that not point out that, there were no frivolous/speculative lawsuits against public officers after all, and that, the real motive for the PAPA was to scare away citizens from filing actions against public officers, who injured them. The EAG unwittingly confirmed this when he said in the Hansard: 

“If a speculative action is brought against the public authority, it is in the public interest that there should be some deterrence to prevent people who are interested in these actions from trying to get something to which they are not properly entitled.” 

 

First, how do they get something to which they are not entitled by merely filing cases in court? Is the court a robot that you, garbage in and garbage out? This punitive cost provision is still retained in S. 2(b)-(d) of the POPA, though slightly rephrased, to disguise its menacing intent, but without success. The PAPA has couched it in S. 1(c) in terms of “costs to be taxed as between solicitor and client” without attempt to hide the punitive intent. A read of the Hansard Report in casu, is an eye-opener on the injustices for which the PAPA was designed against the citizens in England. It was also clear from the Hansard Report that some of the English corporations for which the PAPA was designed, were privately owned, doing their private businesses of tram bus, etc, which were publicly regulated, for which they were said to be performing public functions! It is clear the EAG had a difficult job defending the indefensible, a contest which he partially lost, first in 1939, when the limitation time was increased to 12 months, and totally in 1954, when the PAPA was completely abolished.

The EAG did not advert to the fact that the defence of public authority cases were funded by the taxpayers, of which the victims were amongst. Maybe at that point in time, these private corporations masquerading as public authorities, were personally financing the lawyers that represented them in courts, as was most likely the case, and wanted to be reimbursed and, for that reason, constituted a pressure group, lobbying in this regard. Otherwise, there is no basis for government to claim punitive cost against citizens for challenging real-life instances of allegations of government’s violations of their rights. Besides, frivolous/speculative cases are jurisprudentially easy to spot without wasting the defendants’ time, as no trial would be done before the case is dismissed. The courts, having designed a means of spotting them and evolved a court process for it. The defendant files objection in limine on no reasonable cause of action. And a court merely examines the facts pleaded with the reliefs claimed to determine if there is reasonable cause of action. If no reasonable cause of action it is upheld, the case is dismissed in limine. 

Thus, only a court has the jurisdiction to determine frivolous and speculative suits and not a statute. Hence, any statute that attempts to do that is an afront to the exclusive jurisdiction of the court to determine citizens’ disputes under S.6 of the Constitution and also, constitutes hindrance to access to court and fair hearing under S. 36(1)(a) of the Constitution – Olusanya v. Osinleye (2013) 11 NWLR (Pt. 1368) 148 (SC) 170, B; 172, C-D. Such provisions in the PAPA and POPA are devious instances of another form of Petition of Rights to surrender the control of the courts to the AGs. To compound the malevolent intent of the POPA, S. 2(d), still furthering the punitive cost theory began in S. 2(b), provides that, the court may award all the cost which the defendant incurred, if it concludes that the claimant did not give the defendant sufficient time to make amends! One can see that the POPA is a study in impossibility. The victim must file his action timely within three months, or else the suit becomes stale, but must still give the government sufficient time to make amends before filing the action, how? It is clear that the POPA is hedged about by provisions that are designed to prevent access to courts. The courts and the lawyers have not paid any attention to S. 2(b)&(d) of the POPA that it constitutes more dangerous infraction of the right of access to court and fair hearing and direct usurpation of the functions of the judiciary than even S. 2(a) of the POPA that is so notorious and justly, roundly vilified. In fact, this was a major ground of antagonism against the PAPA in the Hansard Report in casu. 

One can see the ulterior motives behind the promulgation of the PAPA in England in 1893 as a means to inhibit access to justice of the victims of the private corporations masquerading as public authorities in order to protect the business interests of the private owners, thus, showing that, right away from inception, there was nothing to write home about the PAPA. This frightening dimension of the unedifying life of the POPA has manifested in Nigeria through the decision in Sylva v. INEC [supra] which held that, private persons/corporations sued jointly with public officers for carrying out public functions, enjoy the protection of the POPA. The POPA therefore ought not to be tolerated a day more in Nigeria.

In the end, in virtue of all the authorities cited hereinbefore, the anachronistic S. 2(a) of the POPA, which has been roundly found to have given too short period of access to courts and therefore, a contrivance to hinder access to justice, ambiguous, absurd, discriminatory, unreasonable, unjustifiable, unfair, cruel, remote, unconscionable, creates inequality before the law without any operational necessity, and not in accord with international best practices, with regard to its discriminatory application to public officer-employees and also, other citizens, is therefore, unconstitutional and void in virtue of SS.1(1)&(3), 17(1)(a), (c) & (e), 315(3)(c)-(d) & 254C-(1)(f)-(h)&(2) of the Constitution; Arts 8(1)&(3) of the ILO C158; Arts 1, 7, 10, 21(2) & 23(1) of the UDHR and; Arts 2,3,7&15 of the ACHPRA – Bob Thompson Dickens Ngobi v. Kenya Ports Authority & Ors (2017) KEHC 627 (KLR)[24] to the effect that, the provisions of existing law must either be read as modified by the Constitution to attune with the constitutional philosophy or declared unconstitutional if they cannot be so accommodated. That is the doctrine of proportionality at work. Justice Otieno puts it beautifully thus in paras 8 & 9 of the decision:

“After the promulgation of the Constitution of Kenya 2010, certain provisions of the hitherto existing laws have the option of being read as being modified by the constitution so as to be compliant or just be rendered and declared unconstitutional. One of the many hallmarks of our Constitution is the entrenched bill of rights with various rights including right to access justice unhindered.

I must say, as various superior courts…have said more than once, that a statutory provision that seeks to hinder any person’s access to justice, seeks to impose hurdles on the way of citizens from seeking accountability, openness and efficiency in service delivery by government or government agencies, must be seen to violate Article 48 and must be held to be unconstitutional for being antibusiness, oppressive, and I dare add, suppress the need to interrogate the constitutional values of accountability, transparency and efficiency expected of state agencies.”

 

I want to believe that is the position too in Nigeria by virtue of SS. 1(1)&(3), 6(6)(b), 36(1)(a), 17, 254C-(1)(f)-(h)&(2), 315(1)(a)&(3)(d) of the Constitution read in conjunction with Arts 8(1)&(3) of the ILO C158; Arts 1, 7, 10, 21(2) & 23(1) of the UDHR and; Arts 2,3,7&15 of the ACHPRA. Art 2 of the ACHPRA bars discriminatory application of the rights granted under any ground while Art 3(1)-(2) gives every individual right to equality before the law and equal protection of the law. Art 7 says “every individual shall have the right to have his cause heard” without limitation. S. 2(a) of the POPA violates rights of equality before the law and equal protection of the law without operational/institutional justification. When S. 17 of the Constitution, which guarantees equality of rights and obligations before the law, impartiality and easy accessibility to the courts, together with the requirement that government actions must be humane, is read along with Arts 2,3,7 & 15 of the ACHPRA and S. 254C-(1)(f)-(h)&(2) of the Constitution and Arts 8(1)&(3) & 9 of the ILO C158, there is no doubt that S. 17 of the Constitution has been made justiciable by these provisions, apart from the fact that the ACHPRA, which Nigeria has domesticated since 1983 and the ILO C158, are enforceable on their own. 

Therefore, the POPA, being impossible to be read accommodatively with the forgoing provisions of the Constitution and binding international conventions, having denied easy access to courts and created inequality before the law, and ensued in unfair labour practices, contrary to S. 254C-(1)(f)-(h)&(2) of the Constitution, is unconstitutional, null and void and therefore, inapplicable to public officer-employees. It is liable to be struck down. The provisions of S. 254C-(1)(f)-(h)&(2) of the Constitution are even on more firm footing than the fundamental right provisions of the Constitution, having been made non-obstante over them and as such, the foregoing authorities apply with more force to nullify the POPA on suits brought by public officers on contracts of public employment. And I so hold.

The Supreme Court’s decision in Anolam’s case on the POPA is therefore distinguishable from the present case because, it was not determined under the auspices of the Third Alteration Act, under which this NPO is being newly determined. It is accordingly hereby distinguished. Anolam’s case, therefore, with utmost respect, cannot be and is not an authority for this case, the Third Alteration Act via S. 254C-(1)(f)-(h)&(2) of the Constitution together with S. 13-15 of the NICA, Arts 2,3,7 & 15 of the ACHPRA; Arts 8(1)&(3) & 9 of the ILO C158; S. 17 of the Constitution; Arts 1, 7, 10, 21(2) & 23(1) of the UDHR and all the foreign authorities cited in that behalf to elucidate S. 254C-(1)(f)-(h)&(2) of the Constitution, having effected a radical change in the law of the realm, which radically impacted the applicability of the POPA to public servants [public officers] in Nigeria, are therefore the authorities for the issue at hand. The whole of the notorious and anachronistic POPA, a two-section statute, is hereby declared to be unfair labour practice and contrary to international best practices and accordingly, hereby struck down as unconstitutional.

From the foregoing, it is clear that the problems of the POPA are a combination of its nebulous provisions, the overtly short grace period of three months it provides, which, in practical reality impedes access to courts, its discriminatory policy and inequality before the law ambience and, its provision for punitive cost and victims being forced to wait for negotiation under the overtly short three months before filing actions in courts, which are further instances of attempts to dissuade citizens from exercising their rights of access to the courts. Whereas the LA is very explicit and detailed about what it covers and there is no mistaking its purpose and the extent of its applicability. In addition, the LA gives reasonable limitation periods for all types of actions and subjects. It is a highly comprehensive statute, which shows a high level of research that culminated in it. 

Even for torts arising from negligence, it gives three years, which tallies with the 36 months given by Malaysian Public Authorities Protection Act, compared to the three months of the POPA. For contract, it gives six years for simple contracts. Hence, the LA ticks all the four boxes of the proportionality test 100% and further satisfies fair labour practice and international best practices while, the POPA failed woefully in all. Applying the doctrines of proportionality, fair labour practices and international best labour practices [S. 254C-(1)(f)-(h)&(2) of the Constitution], the POPA, having been struck down, the LA and its state versions take plenary, being in consonance with international best practices and not suffering any of the unconstitutional defects of the POPA. That is exactly what the Constitutional Court of South Africa did in Leach Mokela Mohlomi v. Minster of Defence pending the time the parliament would formally repeal the POPA and harmonise the limitation laws.  

Nevertheless, I still propose to look at the issue further from another angle, the angle of textual reconstruction of the vexed S. 2(a) of the POPA and the vexed Ibrahim v. JSC, not hitherto examined by the courts, which is another way of distinguishing the latest Supreme Court’s authority [Anolam’s case] which held that S. 2(a) of the POPA is applicable to statutory employment. This is done in order to give completeness to the very important issue. I  have to preface this aspect of the decision with the revelation that, in my three decades of experiences in the legal career as both a lawyer and now, a judge, there has not been any point of law that has been so notoriously recondite, as the question of the applicability of S. (2)(a) of the POPA to contracts, including contracts of statutory employment, because of its volatility and the sheer rapidity with which the three layers of superior courts in Nigeria have been shunning out irreconcilable conflicting decisions on it, such that, it has for long been impossible to discern the ratio decidendi in these decisions, to the chagrin of the courts, stakeholders and the citizenry. It would appear that the first cause of this problem is the fact that, often, the three layers of courts are not aware of some of these irreconcilable conflicting decisions at the points they decided on this issue thus, the continuing reverberations of irreconcilable conflicting decisions. It is part of the judicial oath of judges to draw attention to such disturbing scenario that does grave violence to the cherished doctrines of precedence and stare decisis. 

For this reason, I felt judicially bound by the admonition of His Lordship, Uwais[25] [former CJN] at one of the Biennial All Nigeria Judges Conference at the NJI, Abuja wherein His Lordship was reported to have admonished that, it is the duty of the trial courts to fill up gaps observed in decisions of the appellate courts by distinguishing them so that, the appellate courts could approve or disapprove of the new light thrown on the issue, and that, that was the only way to develop the law[26]. I also found that there are two further causes of the unstable decisions of all the three layers of the superior courts on the breadth of the POPA. They are the questions of 1. the nature and breadth of what exactly Ibrahim v. JSC [supra] decided and, 2. why exactly S. 2(a) of the POPA was not applicable to contracts, including contracts of statutory employment. These two questions had never been investigated in the previous precedents of the appellate courts till now. I will not pay attention to the irreconcilable conflicting decisions of the trial superior courts and the Court of Appeal in this regard, though galore, for the obvious reason that the Supreme Court that sets the pace, has galore irreconcilable conflicting decisions on this issue and, being at the pinnacle of judicial precedents in Nigeria, its decisions must be the focus, as the lower courts per force fall in line with its decisions. 

All that were done in all the previous Supreme Court’s authorities were, at one hand, holding that the POPA was not applicable to all contracts, including contracts of statutory employment and, at the other end, holding that the POPA was applicable to contracts, including contracts of statutory employment. There is the third group, in which Anolam’s case fell, which says the POPA is not applicable to all contracts, except statutory contracts of employment. But I shall treat this third group as the dominant variant of the larger group saying the POPA is applicable to contracts, being that; that is the latest authority [Anolam’s case] from the Supreme Court. Thus, in essence, what ensues, with the utmost respect, are two divergent schools of thought within the judicial circle in Nigeria, with the resultant irreconcilable divergent decisions resulting in no discernible rationes decidendi common to the disparate authorities. 

This state of affairs from the apex court, with utmost respect, has regrettably permeated the decisions of the lower courts, with the resultant instability in their decisions in casu thus, gravely interfering with the doctrines of stare decisis and judicial precedent, much needed for stability in the country itself. This is obviously very unsavoury for a judicial system based on the doctrines of stare decisis and judicial precedents. But as unsavoury as it is, it happens occasionally in all common law jurisdictions, usually because of ignorance of what was previously decided by another panel of the same court on the subsequent panels. But I have not unearthed any foreign source where it has persisted on an issue for as long as it has been in Nigeria. The solution has always been, for the trial court, at the earliest opportunity, to bring this up promptly in its decision, where the lawyers have failed in their duty to do so, to enable the apex court rectify the situation.

We can see the representative examples of the irreconcilable conflicting authorities from the two antagonistic schools of thought, which I take the respectful liberty to christen: the restrictive and expansive schools of thought. The restrictive school of thought is of the view that the provisions of S. 2(a) of the POPA should not be stressed beyond its plain language and as such, it is not applicable to all types of contracts, including contracts of statutory employment, while the expansive school of thought is of the opposite view and therefore, holds that the POPA is applicable to all types of actions, particularly, contracts of statutory employment. From the restrictive school of thought, we have the following representative cases:

1. Fasoro v. Milborne (1923) 4 NLR 85.
2. Salako v. LEDB (1953) 20 NLR 159.
3. Obiefuna v. Okoye (1965) ALL NLR 357.
4. Bankole v. NBL (1969) NCLR 385.
5. NPA v. Construzioni Generali FSC & Anor 3 PLR/1974/48 (SC)[27].
6. Osakue v. FCE (Technical) Asaba & Ors (2010) 10 NWLR (Pt. 1201) 1 (SC).
7. Revenue Mobilisation, Allocation and Fiscal Commission [RMAFC] & Ors v. Ajibola Johnson & Ors (2019) 2 NWLR (Pt. 1656) 270 (SC).
8. Oluremi Obasanjo & Anor v. Wuro Bogga Nigeria Ltd & Ors (2023) 2 NWLR (Pt. 1868) (SC).
9. Rector Kwara Poly v. Adefila (2024) 9 NWLR (Pt. 1944) 529 (SC).

 

From the expansive school of thought, we have the following representative cases:

1. Ibrahim v. JSC Kaduna State (1998) LPELR-1408 (SC); also (1998) 14 NWLR (Pt. 584) 1 (SC).
2. Yare v. National Salaries, Wages and Income Commission (2013) LPELR-20520 (SC).
3. Abubakar Abdulrahman v. NIPC (2020) LPELR-55519 (SC).
4. Idachaba & Ors v. University of Agriculture Makurdi & Ors (2021) LPELR-53081 (SC).
5. Aba v. Board of Directors, NIPOST (2023) 5 NWLR (Pt. 1878) 475 (SC) [decided on S. 59(1) of the NIPOST Act in pari materia with S. 2(a) of the POPA]. 
6. Anolam v. FUTO & Ors (2025) LPELR-80027 (SC).    

 

Of note is that the first decision on the restrictive school, was handed down in 1923, just seven years after the promulgation of the POPA in 1916. This decision held firmly that the POPA was not applicable to all contracts without distinction. And for 75 years all the courts in Nigeria consistently held that the POPA was not applicable to all contracts without exception until 1998 when Ibrahim v. JSC was decided. After Ibrahim v. JSC things were no longer the same with respect to the breadth of the application of the POPA: whether it applies to contracts or not. The situation simply went topsy-turvy. Hence, in the past 27 years, the turbulent waters of the breadth of S. 2(a) of the POPA have been on. What then exactly did Ibrahim v. JSC decide? That should logically be the starting point, being the origin at which the centre no longer held. The facts of Ibrahim v. JSC were that the Judicial Service Committee, Kaduna State [JSC] compulsorily retired the appellant. The appellant challenged this, and the respondents raised in limine S. 2(a) of the Public Officer (Protection) Law of Kaduna State [POPL], in pari materia with S. 2(a) of the POPA that, it caught the action because, the JSC and AG’s office were persons and therefore, public officers within the contemplation of S. 2(a) of the POPA, and therefore, entitled to the protection of S. 2(a) of the POPA, a point which the appellant resisted, arguing in the opposite, that the POPL was only applicable to natural persons. 

Thus, the issue that went from the trial court to the Court of Appeal and ultimately, the Supreme Court, was whether the POPL was applicable to natural persons occupying public offices alone or both natural persons as public officers and the public offices and authorities themselves, as artificial persons and therefore, also public officers. In a nutshell, the question was whether the POPL was applicable to public statutory corporations, public authorities and departments. And the Supreme Court, citing SS. 3 & 55 of the Interpretation Law of Kaduna State, held that the POPL was equally applicable to statutory bodies like the JSC, as a person, and therefore, the JSC and the office of the AG Kaduna State were public officers. Thus, it is clear that it was the question whether the POPL was applicable to non-human bodies that went through the three layers of superior courts to the Supreme Court and, the Supreme Court, summing up issue 1 of the appeal, which couched the question held at 46, D-G:

“This seems to me to explain the admittedly ‘vast difference’ between the meaning of the words ‘any person’ in the Public Officers (Protection) Law, 1963 as against their meaning in the English Public Authorities Protection Act, 1893. Whereas the words ‘any person’ in the former law is referrable to both natural and artificial persons, they only cover public authorities in the United Kingdom Act.

Having held that the act complained of by the appellant was an act done by the respondents in the direct execution or in the discharge of a public duty, the conclusion I therefore reach is that the said respondents fall within the contemplation of the protection afforded by the Public Officers (Protection) Law… The cause of action in this suit arose on 8^th February, 1984… The present action, however, was not commenced until the 28^th April, 1986, a period of two years…It is clear that the appellant’s suit is caught by the provisions of the Public Officers (Protection) Law…and therefore statute-barred?” 

 

The issue 1 decided by the Supreme Court in casu goes thus at p. 28, B-C:

“Whether the respondents in this mater i.e. the Judicial Service Committee of Kaduna State and the Attorney-General of Kaduna State, howsoever defined, fall within the contemplation of the protection afforded public officers by the Public Officers (Protection) Law, Cap. III, Laws of Northern Nigeria, 1963 as applicable to Kaduna State?”        

 

From the issue 1 as quoted verbatim above and the ratio decidendi on it as equally reproduced verbatim earlier above, it is clear that the question of whether the POPL was applicable to contracts was not raised at all and was also not considered at all throughout the three levels of the High Court, the Court of Appeal and the Supreme Court. This point was therefore not taken and determined. And there is no doubt that the relationship in question between the appellant and the respondents, was contract of employment and that, the cause of action in the alleged premature retirement of the appellant, was a cause of action in breach of contract of employment, performance of public duty just being incidental. This much was confirmed by the Supreme Court in G.B. Olivant Nigeria Ltd v. Agbabiaka (1972) LPELR-1295 (SC) 9, C-F; Osakue v. FCE; RMAFC v. Ajibola Johnson [supra]; and Kwara State Poly’s case and a long line of other Supreme Court’s authorities up to the point of Ibrahim v. JSC, in which the departure occurred and even, thereafter. It is clear in Ibrahim v. JSC that the Supreme Court went straight from its decision that the phrase “any person” in S. 2(a) of the POPA included public departments and authorities, to decide that the POPL automatically barred the action because the objector-respondents were public officers performing public duties. It did not consider the ordinarily interpositional question: whether the POPL applied to contracts, which was the cause of action, and so, did not distinguish the previous authorities that decided contrarily, and rightly so, as this was not made part of the issues and arguments that came to the Supreme Court.

This obviously was an error from the learned counsel to the appellant right from the High Court through the Court of Appeal to the Supreme Court in not making the question, whether S. 2(a) of the POPL was applicable to contract part of his case, but only whether the POPL was applicable to statutory bodies/authorities as persons. Had this been made an issue and part of the arguments, the High Court, the Court of Appeal and the Supreme Court would have been compelled by the force of the issues and arguments placed before it, to decide on the two questions together: 1. Whether the POPL was applicable to statutory bodies as public officers, which was decided, and 2, whether the POPL, was also applicable to contracts of statutory employment, which was not argued, examined and decided. Had the two issues been raised, the Supreme Court would have decided them before concluding whether the suit was statute-barred in any event. The problem now is that, incidentally, with profound respect, all the subsequent Supreme Court’s authorities from the expansive school of thought that held that the POPA and statutes of like nature applied to contracts, particularly contracts of statutory employment, relied heavily on Ibrahim v. JSC or authorities that relied on Ibrahim v. JSC. That, with the gravest respect, is the first problem with these authorities. In NPA’s case [supra] the Supreme Court construed S. 97 of the Ports Act, in pari materia with S. 2(a) of the POPA and held:

“De Commarmond S.P.J. as he then was, construed the provisions of the Public Officers Protection Ordinance which is almost identical with S. 97 of the Ports Act, and thereafter stated the law as follows:

‘I am of the opinion that section 2 of the Public Officers Protection Ordinance does not apply in cases of recovery of land, breaches of contract, claims for work and labour done, etc.’

Delivering the judgment of the court…Bret. M.R., made the following illuminating observation:

‘It has been contended that this is an action in contract, and that whenever an action is brought upon a contract, the section does not apply. I think where an action has been brought for something done or omitted to be done under an express contract, the section does not apply; according to the specific cases cited, an enactment of this kind does not apply to specific contracts. Again, when goods have been sold, and the price is to be paid upon quantum meruit, the section does apply to the action for the price, because the refusal or omission to pay would be failure to comply with the terms of the contract and not with the provisions of the statute.” 

 

Attention is drawn to the italicised portions of the above excerpt. Clearly, the Supreme Court laid down a general ratio that the POPA was inapplicable to all contracts in all their ramifications without exception. It would be observed too that NPA’s case impliedly held that the POPA was only applicable to torts because, that is the logical implication of saying that the POPA was inapplicable to all forms of contracts, where the allegation is that of breach of contract. If the POPA is inapplicable to all actions based on breach of terms of contracts, then, the only other actions, it could be applicable to, are torts. The Supreme Court merely fell short in NPA’s case, of giving the full reasons why the POPA was only applicable to torts or rather, why the POPA was not applicable to contracts by giving the partial reason that, because the cause of action is on breach of contract and not on anything covered by the POPA, the POPA could not apply. Failing to give the full reason why the POPA is only applicable to torts, is the second missing link. CIL Risk Mgmt. [supra] also reached the same conclusion as NPA’s case when it held that: “the scope of the Act does not extend to actions founded on recovery of land or breach of contract” – see also Osakue v. FCE and particularly, Kwara State Poly’s case where the Supreme Court recently in 2022, emphatically held that:

“A contract of employment with statutory flavour is one in which the employer is created by an enabling statute. Where the employment enjoys statutory flavour, the terms and conditions of the contract are as provided for by the statute creating the employer. As such, the procedure for employment and discipline, including termination, having been spelt out as provided must be complied with…In the instant case, the 1^st-3^rd respondents’ employment with the appellants is a contract that has statutory flavour… [552, A-E]

Public officers (Protection) Law does not apply to breach of contract cases as it was not intended by the legislature to apply to contracts. In this case, the 1^st-3^rd respondents’ action is grounded in contract. Therefore, the defence of statute-bar under the Public Officers (Protection) Law raised by the appellants does not avail them.” – [544, F-H].

 

In contrast, the Supreme Court held in Anolam’s case that: “It is without argument that they were both regulated by the Public Officers Protection Act” by which it meant, both FUTO, as public-employer and the claimants/appellants as public officer-employees, constituting both sides to the contract of employment, were both regulated by the POPA because, they were both public officers, and as such, the POPA barred the action. It is clear there is irreconcilable conflict in these decisions, one set saying contract regulates the relationship between the parties, while the other says, the POPA reregulates it. Therefore, there is no discernible ratio decidendi common to the opposing decisions. 

I wish to humbly point out here that the POPA is not a reciprocal-right creating statute, but a unilateral-right creating statute, and as such, could not and did not regulate the relationship between the parties in Anolam’s case, as is wont in contracts, but only unilaterally conferred a procedural benefit on the public authorities/officers against the victims of their acts and omissions whereas, the LA or the Limitation Law of each state in Nigeria is a reciprocal-right creating statute in which, S. 7(1)(a)-(b) of the LA and the corresponding sections in the state-versions confer the same procedural right in favour of both sides to the contract. This is the very reason why it is clear that the POPA was never meant to and actually did not regulate any contract and did not apply to contracts, contracts being a reciprocal concept, including contracts of statutory employments, which are expressed contracts like all other contracts, notwithstanding that they are often standard form contracts/contracts of adhesion. The language and texts of S. 2(a) of the POPA bear these facts out. 

At this juncture, it is necessary to reproduce verbatim the vexed provisions of S. 2(a) of the POPA to underscore our further discussion based on the analysis of its provisions in context. S. 2(a) of the POPA goes thus:

“2. Actions against public officers

Where any action, prosecution, or other proceedings 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

Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”

 

Now, close attention should be paid to the italicised portions of the excerpt. It would be observed that throughout the textual ambit of S. 2(a) of the POPA, as reproduced above, there is no mention of contract or terms of contract or conditions of service [contract] or any consensual relationship but throughout, the language depicts injuries and causes of action arising from non-consensual acts and omissions or defaults. All the provisions of S. 2(a) of the POPA must be interpreted in the context of “any act, neglect or default complained of”, being the concomitance of S. 2(a) of the POPA. In effect, S. 2(a) of the POPA applies only when the suit complains about “any act, neglect or default” and not when the suit is about any breach of contract or terms of contract or breach of any agreement. S. 2(a) of the POPA talks about “any act done in pursuance of… any Act or Law or any public duty or authority, or in respect of any neglect or default…” and that, a suit would not lie outside three months next “the act, neglect or default complained of…” and not in respect of any act done in breach of any contract or any act done in pursuance of any contract. The phrase “any act, neglect or default” is symptomatic of tort, in that whatever led to breach of contract must coalesce in breach of contract. Whether it was negligence or default that led to the breach of contract, contract action is not sustainable by merely proving negligence or default without tying it to breach of a particular term of the contract. So, “any act, neglect or default” is purely tort legalese while breach of contract or term of contract is contract legalese.

Contracts are not and cannot be the products of any statute or duty, or authority placed by statutes, but purely the products of consensus and reciprocity, notwithstanding that public authorities are parties, even so, with standard form contracts. The other side [public employee] must still execute the adhesive contract to make it effective and none can go outside it to bring in any extraneous statute that is not specifically made for contracts. The Supreme Court espoused the principle very accurately in Ovivie v. Delta State Steel Co. Ltd. (2023) 14 NWLR (Pt. 1904) 203 (SC) 227, F-G by saying: “every offer or letter of employment provides whether the person would be bound by the Federal Civil or Public Service Rules or any other law or not to make his employment enjoy statutory flavour or not.” Though, the subsequent portion of the ratio, which was not quoted abovein, seems wider than the theory being propagated in this decision, as it appears not to recognise that an external statute can impose itself on contracts, if explicit enough, but it reinforced the pivot championed in this decision that, the POPA, which was not incorporated into contracts of employment with statutory flavour, cannot be read into it in the presence of S. 7(1)(a)-(b) of the LA, which directly deals with contracts. That was the purport of the NPA’s case [supra]. For that reason, S. 7(1) of the LA is the applicable limitation law to all types of contracts without disputation because, it expressly mentions all types of contracts, while S. 2(a) of the POPA is not applicable to any contract at all, including contract with statutory flavour because, it did not cover actions brought on breach of contract and did not mention anything remotely related to contracts or agreements or consensus or reciprocities.

Where a duty is imposed under a law and carried out pursuant to the law and an injury occurred in the cause of carrying out such duty, such injury, not arising from breach of contract, but from a duty unilaterally imposed by law, can only come under the canopy of tort in the administrative actions of tram drivers in the management of their tram buses which led to tortious injuries, which cover the duties of care arising from accidents, negligence and wilful acts or omissions or defaults not arising from contracts, but from public duties or exercise of administrative/ministerial powers and which duties are owed at large to the general public. This accounts for the nebulous and loose language of S. 2(a) of the POPA in tune with the imprecise nature of torts and administrative right violations. These includes administrative duties or acts or default of executive arm of government or decisions of executive arm of government which infringed citizens’ rights and are therefore, subject to judicial review[28]. Public duties/authorities are not created in contracts but in statutes and common law. Only contractual duties are created in contracts, public duties arising therefrom, are only incidental.

Contractual obligations are created in consensual agreements duly executed between the parties, even when it involves government as a party. The contract creates the obligations of each party, even though, they are for the benefit of the public. The words “acts, neglects and defaults” must therefore be understood in the context in which they were used in S. 2(a) of the POPA, which did not anticipate in the faintest manner, contracts or consensual conducts. They were used purely in relation to torts. It is for this reason that S. 2(a) of the POPA attaches to specific conducts of public officers (institutions and their human agents) and not all types of conducts (acts) of public officers, for which reason, specific contracts of all shades, including contracts of statutory employments, entered into by public officers/authorities are exempted. I refer to p. 40 of Eze’s case [supra] to underscore my point:

“A tort may be defined broadly as civil wrong involving a breach of duty fixed by law, such duty being owed to the persons generally and its breach being redressable primarily by action for damages…’ [Aviomoh v. COP (2022) 4 NWLR (Pt. 1819) SC 111, D-A]

‘A civil wrong, other than breach of contract, for which a remedy may be obtained, usu. in the form of damages; a breach of duty that the law imposes on persons who stand in a particular relation to another.’ – [Black’s Law Dictionary, Deluxe Ninth Ed. p. 1626]

‘What then is negligence? Negligence is said to be the omission or failure to do something which a reasonable man, under similar circumstances, would not do. Negligence can be said to be failure to exercise that care which the circumstances demand, that is, the absence of care according to the circumstances.’ – [Ayadi & Ors v. Mobil Producing Nigeria Unlimited (2016) LPELR-41599 (CA) 36, A-C]

‘Thus, tort includes both intentional, accidental or negligent acts and omissions [defaults] once the duties fixed by law for the benefits of all persons are breached – see MTN Nig. Communications Ltd v. Essien & Ors (2021) LPELR-55841 (CA) 16-17, D-A. In G.B. Olivant Nigeria Ltd [supra] 9, C-F, the Supreme Court says of the distinction between torts and contracts:

‘At present day, tort and contract are distinguishable from one another in that the duties in the former are primarily fixed by law, while in the latter they are fixed by the parties themselves. Moreover, in tort the duty is towards persons generally; in contract it is towards a specific person or specific persons. If the claim depends on the proof of terms of the contract, the action does not lie in tort, so a claim for wrongful dismissal is a claim in contract.”

 

Therefore, the stress placed by the texts of S. 2(a) of the POPA on public duties of public officers does not apply to acts not arising from specific laws but rather, only to duties placed directly by law on public officers, as public officers have no duty or authority that is not covered by specific statutes or common law. These are duties at large created by statutes for the benefits of all the members of the society at large and not specific duties created by contracts specifically for the benefits of the named parties, i.e. government/statutory authority and the statutory employees. Hence, S. 2(a) of the POPA is not applicable to contracts of statutory employment, because it covers public duties imposed by law, whereas public obligations under contracts of statutory employment are imposed by the contracts executed. And the POPA is not directly incorporated by the employment letter and, it is not even remotely concerned with contracts, including contracts of statutory employment but has as its object, an entirely different scenario, as has been shown above. It is S. 7(1)(a)-(b) of the LA that is applicable to all contracts, including contracts of statutory employment. From the text of S. 2(a) of the POPA and the definition of torts above, it is clear that the duty of care created in S. 2(a) of the POPA is owed to the public generally and not to specific persons and therefore, the POPA covers only torts.

To have duties under contracts, the terms and conditions of the contract must be resorted to. That is why, even though, contracts of statutory employment confer statutory flavour, it is still the contract that creates the statutory flavour by directly incorporating the statute/byelaw that contains the terms and conditions of service. Thus, such statute or byelaw is made part of the contract by incorporation by the employment letter and not otherwise; and must govern the incidences of disputes. That is why when disputes arise in contracts of statutory employment, the parties are still mandated, like in the ordinary contractual disputes, to plead the terms and conditions of the employment that were allegedly breached and in what manners they were breached – Ikuma v. Civil Service Commission Benue State & Ors (2012) LPELR-8621 (CA) 18-19, 23-24 and Suleiman v. Civil Service Commission of Ondo State & Ors (2015) LPELR-41796 (CA) 21-22, A. 

As powerful as statutes are, it follows that, no extraneous statute could be read into contracts, unless it is unambiguously manifest that it has, as its object, contracts. The law has maintained the sacredness of contracts, as private solemn agreements such that, throughout legal history, external statutes impinging on contracts have been couched unambiguously. They have been very specific about their purpose by specifically mentioning contracts or consensual relationships in the texts of the statutes and, this is often very manifest from their very titles. For example: the Law Reform (Contracts) Act, 1961; the Illiterates Protection Act 1918; Sale of Goods Act, Hire Purchase Act, Pre-Shipment Inspection of Export Act, Pre-Shipment Inspection of Import Act, Trade Disputes Act, Labour Act, Trade Unions Act, Employees Compensation Act, etc.  

All these statutes have one thing in common. They unmistakably demonstrate their intention to impinge on contracts. This is because contracts and the duties arising therefrom, are not normally imposed by statutes, otherwise the idea of contract rooted in consensus ad idem is negated. S. 2(a) of the POPA does not satisfy the requirement of manifesting directly that contractual issues are impinged, but S. 7(1)(a)-(b) of the LA does. To arrive at the status of a public-officer-public-employee in a contract of employment with the public department/authority-employer, with regard to the POPA vis-à-vis the contract executed between the government departments and private individuals, who thereby became public officer, it is the status of the public employee before he entered into the employment contract with government department that matters. He entered, like all private citizens, into the contract, as a private citizen. It is the contract signed that made him a public employee/public officer. 

To that extent, he, like all other private persons that entered into contracts with government departments, remain bound only by the terms of the contracts and not otherwise, and therefore, still retain their private individual status when asserting a right in the contract and cannot therefore be attended with the POPA when he brings a suit on the contract, the POPA, not being a term incorporated in the contract and not directly impinging on the contract like S. 7(1)(a)-(b) of the LA. To argue otherwise would mean that, after signing the contract, it was jettisoned. 

And by that logic, the reasoning by which the courts reached the conclusion that a private citizen is not bound by S. 2(a) of the POPA because he is in a contractual relationship with government department also applies to the private citizen who entered into contract of statutory employment with government. Both the government and the public employee are bound by the terms of the contract they executed and not any external statute that was not directly incorporated into the contract or that did not directly impose itself on the contract. It is with the foresight of this that the PAPA in England, at the initial stage, never applied to any type of contract until the courts lapsed into the confusion created by the nebulous language of the PAPA. The House of Lord laid the foundation for the total inapplicability of the PAPA to contracts of all shades in Bradford Corporation v. Myers (1916) AC 242[29] delivered Nov 12, 1915, the 22^nd year of the PAPA. The House of Lords was reported[30] to have held, in the words of Lord Buckmaster LC, as follows:

“In other words, it is not because the act out of which an action arises is within their power that a public authority enjoys the benefit of the statute. It is because the act is one which is either an act in the direct execution of a statute, or in the discharge of a public duty, or the exercise of a public authority. I regard these latter words as meaning a duty owed to all the public alike or an authority exercised impartially with regard to all the public. It assumes that there are duties and authorities which are not public, and that in the exercise or discharge of such duties or authorities this protection does not apply.”

 

Reviewing the same Bradford Corporation v. Myers (53 SLR 776)[31], Casemine says:

“The House of Lords affirmed the decision of the Court of Appeal, holding that the negligence exhibited by Bradford Corporation’s servant in delivering the coke through Mr. Myers’ shop window was rooted in a voluntary contract rather than any statutory duty or public authority. Consequently, the Public Authorities Protection Act 1893 did not shield the Corporation from the lawsuit…The court underscored that the Corporation’s obligation to sell coke was an authorized but voluntary act, not a mandatory public duty.”

 

By mentioning ‘negligence’ in the second excerpt, Casemine showed that the House of Lords demonstrates a serious confusion as to the distinction between contract and tort. Negligence is a loose word in the language of contract and cannot give rise to any cause of action until the term of the contract breached by the negligence is adduced. So, the strict language of contract is breach of a term/breach of contract. In Bradford Corporation v. Myers, the Corporation’s agent [public officer] might have been negligent in damaging the shop’s window but that was not relevant to contract. What was relevant to contract was supplying the coke through another channel than agreed, a breach of contract. The damage resulting from the negligence was merely incidental to the breach of contract, as the shop owner could still have validly sued for breach of contract for merely supplying the coke through the window instead of the agreed channel, even without any damage. But the damage caused was itself another cause of action in tort, as well as the trespass in violating the window space without consent or authority. 

So, in Bradford Corporation v. Myers, two types of injuries were afoot: breach of contract and tort. We can see in action the blurred lines between contract and tort and that the same set of facts can give rise simultaneously in one action to valid claims in both. With profound respect, the inability of the House of Lords to appreciate this and clearly make a break with it by stating clearly that the PAPA caught the tort but not the breach of contract, is responsible for the confusion. This inability to make a clean break led to the convoluted language of the decision, which ambiguity, together with the nebulous language of the PAPA itself, laid the foundation for the subsequent disparate conflicting decisions, as to whether the Act applied to both contract and tort together.

From both excerpts, the language of torts is very apparent but surprisingly was not recognised.  And the Hansard Report [supra] confirms that tort was the object of the PAPA. Thus, the decision treated the issue as tort but decided it as contract. We can see that the direct words of Lord Buckmaster LC are not free from ambiguity, especially when you consider the italicised portion with the portion immediately following it. The difficulty is caused by the inability to draw a line between tort and contract. The italicised passage in the excerpt clearly depicts the verbiage of tort. But the clarity of the italicised passage was lost in the immediately succeeding passage, when it sought to make a distinction between public duties and duties that are not public. Whether duties are public or otherwise, the dividing line is that public duties [obligations] under a contract are imposed by the contract while public duties under statutes are imposed by the statutes. The same thing happened to Casemine’s review of the same case, in trying to create a distinction between a mandatory public duty and non-mandatory public duty and conflating it with contract, forgetting that the distinction has no bearing on contract, since duties/obligations in contracts are purely consensual and arise from the terms and conditions agreed.

The approach adopted by the House of Lords in Bradford Corporation v. Myers, in conflating contract with tort, made it difficult to discern the difference between a contract, which a public authority had a mandatory public duty to make and that, which it had the discretion to make, as was attempted in Bradford Corporation v. Myers between the Corporation’s public duty to sell gas to the public at large, which was regarded as mandatory public duty. And for that reason, any contract entered into in that regard was covered by the PAPA, and the public duty to supply coke at large to the public, on which the Corporation entered into an express contract with a particular individual [Mr Myers] with specific term as to the manner to supply the coke, which public duty in that respect was held to be discretionary and therefore, the contract entered into was not covered by the PAPA because, it was not in the contemplation of the PAPA. Both duties in both cases were the Corporation’s public duties imposed by statute. The only difference was that in one, no contract was signed or entered into with respect to supply of gas, while in the other, a contract was duly executed between the Corporation and the private individual, with respect to the supply of coke. 

While the duties were compulsory in both instances for the public authority, the one was a compulsory statutory duty for the benefits of all the members of the public indiscriminately at large and fixed by statute, while the other was discretionarily selective of any individual members of the public at large. How do you now distinguish between the two scenarios the one to which the PAPA applied? That was the knotty question the House of Lords sought to answer in Bradford Corporation v. Myers, which answer has been the source of the almost everlasting confusion. The solution is that, once the public duty is compulsory and fixed by statute on a public authority for the benefit of the public at large, the relationship arising therefrom is not contract, even if money is paid for the public service because, everything about it is fixed by statute. With due respect, describing such mandatorily fixed public duty as contractual was the cause of the confusion. Such mandatorily fixed public duties are administrative statutory duty covered by administrative/constitutional law, especially if this is owed to the whole world at large, and any tort arising therefrom was the target of the PAPA/POPA. Even the so-called duty to supply gas, which is said to be mandatory public duty, if the statutory authority goes out of its way to enter into a specific contract regarding it, it cannot dodge its obligations thereto by citing the PAPA, if it was not directly made part of the contract.

For example, if you apply for CTC of a public document and you were administratively assessed to pay certain amount for it and you paid, but was not given, or you were just not given, even without the public authority collecting money, you cannot sue for breach of contract in that scenario but for administrative violation of right to public information because, you had no contractual right to be given the CTC of the public document but only statutory/constitutional right to be given, as no negotiation and no prior contract was executed that gave you the right. The duty and the right were statutorily created and fixed by statute. Hence, once a public duty is created by statute or in common law for the benefit of the public at large, it does not matter that money is paid for such public duty, the relationship falls under administrative law and only torts and administrative breach of right can arise therefrom. That was the nature of the duty to supply gas in Bradford Corporation v. Myers. This is different from the sale of tickets by tram buses and omnibuses and trains, which satisfied the full requirements of valid contract, notwithstanding that it is a public duty, as the relationship created thereby, is one of offer and acceptance between the public authority and the customer and therefore, cannot come under the banner of the PAPA, the public duty being incidental to the contract, the contract activated it and must govern the incidents.

With regard to the duty to supply coke, and there was negotiation leading to the agreement that the coke be supplied through an agreed channel, which term was breached, that is purely in the nature of contract and comes under the law of contract. That exactly is what the contract of statutory employment with statutory flavour is also because, agreement was duly executed between the parties and not imposed by statute. In contract, all duties/obligations/rights are negotiated and fixed by the parties themselves, even if it is adhesive contract because, the other side must still execute the adhesive contract for it to take effect. It is the agreement that brought the statutory flavour into being. It is not the same thing with the duty to give out CTC or to supply gas, which, being fixed by statute beforehand, therefore falls into the realm of administrative/constitutional law and not law of contract. And the injuries that can happen in one are purely tortious and administrative violation of rights while the injuries arising from the other are purely breaches of contract. In torts and administrative violation of rights, you can sue for damages, injunction, mandamus or certiorari, to compel the doing of a particular thing to which you have a statutory right while in breach of contract you can sue for damages, injunctions too but not certiorari or mandamus which are purely resident in administrative law. The PAPA was designed for the duties to supply gas and the tortious injuries arising thereby and not for the contract to supply coke. The inability to figure this out in Bradford Corporation v. Myers was the cause of the more than century old confusions in the construction of both the PAPA and its offshoot, the POPA.    

The important point is that, whether public duty is mandatory or not, as between the government department/statutory authority and the public servant, who is dismissed or who is complaining about breach of any aspect of his contract of employment with the government department/statutory authority, breach of contract is the basis of the complaint, and it would not matter that the contract is attached with statutory flavour because, it is the contract that incorporated the statutory flavour. So, the public department/statutory authority which, or its officer who, in exercising the statutory contractual power to dismiss or discipline, which the public employee challenges as breach of contract, even though, the public authority exercised statutory power/public duty in the dismissal/discipline, still exercised a power derived from the contract and not public duty statutorily imposed or performed without contractual underpinning. A non-mandatory public duty can exist by statute or common law independent of contract. This is when administrative/public officers are said to have administrative discretion while it is mandatory [ministerial] when they have no discretion. 

In either case, it has nothing to do with contract. In this category fall taxation and rate collections by government. The right of government or statutory authority to administratively level and collect taxes and rates, and the citizens’ duty to pay, is not governed by the law of contract. Tax Law is an aspect of Administrative Law, under the general canopy of Public Law. You do not pay taxes because there is a specific express contract between you and government regarding it but because, it is a right fixed by law for government and a duty fixed for you by law. All contractual duties arise from agreements and belong in the realm of Private Law, irrespective of govt being party to such contract. 

The basic essence of contract is freedom of action and discretion on the parts of the parties to the contract. Therefore, there cannot be any contract which a public authority is bound by statute to make. Once that happens, it goes out of the realm of contract to administrative law and becomes a social contract with the world at large, from which only two types involuntary injuries can arise: torts and administrative violation of rights. Thus, a statute can only give power to a public authority to enter into contract. But it retains the right at all times to determine whether or not to enter into a particular contract. This is still the case when it comes to employment of public officers and their discipline. The statutory authorities still have the discretion to recruit or not a particular person and to discipline or not a particular staff, and that is why they conduct recruitment interviews and disciplinary proceedings to determine the person to recruit and the staff to discipline and the type of punishment to impose. These are powers arising from the contract and not duties imposed by statute, even though, contained in statutes. 

Thus, it comes about that when a public employee is acting for himself in the contract, for example, when suing for breach of the contract, he retains his private citizen’s right [status] by which he originally entered into the contract and is a private citizen for that purpose, but only a public servant for the purpose of carrying out his functions in the contract. The POPA is attached to functions in relation to persons. That is why a purely independent contractor, who is acting the functions of a statutory authority, is covered by the POPA as held by the Supreme Court in Sylva v. INEC [supra].

The Hansard Report of Dec 13, 1932 of the English House of Commons Vol 273 CC286-96[32] [supra] confirms the foregoing reasoning. It concerns the proposal to amend the PAPA to remove private corporations performing public functions from its ambit. Apart from this, the Hansard Report brought out other salient points about the PAPA that showed it was never intended to apply to contract of any type, but purely only to torts. All the speakers, which included the English Attorney-General [EAG], in their contributions, indicated clearly that the PAPA was enacted to take care of the torts in respect of: “people who are injured by the negligence of those who are in control of omnibuses, trams, trains or whatever it may be[33]” and not any type of contract or breach of contract. Seeing this, I kept wondering why it did not occur to the English courts then that the PAPA was only applicable to torts. It occurred to me that, at that period in time, the distinctions between contracts, torts and administrative law were still being worked out or had just been worked out not long; and therefore, had not sunk down well[34].   

It is therefore not surprising that the Nigerian courts too fell into this difficulty possibly following the leads of different disparate English authorities on the PAPA. But had the English courts, which began the application of the PAPA to contracts reverted to the Hansard on the passage of the PAPA, their decisions might have been different. Maybe that was what informed the early decisions of the English courts that the PAPA was not applicable to contracts at all, is a moot point, as they did not specifically say they consulted the Hansard. They could have arrived at the same decision, anyway, by consideration of only the words of PAPA, as the text is totally unsuggestive contracts. 

Thus, the difficulty in separating the PAPA’s coverage from contracts arising from the nebulous language of the Act has elicited scathing remarks from the English courts. Lord Viscount Haldane[35] criticised the Act and said: “it yields no precise definition of the kind of act in respect of which protection is given.” Lord McCardie in Venn v. Tedesco[36] [1926] 2 KB 227 at 228 says, the words of the PAPA were: “as broad as words can be” while Lord Kilbrandon, in the Privy Council case of Government of Malaysia v. Lee Hock Ning says: “It must be said at once of the Public Authorities Protection Act 1893 that from the first it was a statute which, ‘there was none to praise and very few to love’.” Let me add too, that, the fact that there is no agreement as to whether it covered both public authorities and public servants, is a further pointer to its confoundedness. Ibrahim v. JSC in Nigeria says it only covers statutory authorities, obviously taken a cue from its title, whereas, Sujata  Balan [supra] shows, from the review of cases, it covers only public servants and that, its title was misleading, just as much as its Nigerian counterpart’s title: “Public Officers (Protection) Act” was similarly misleading as to whether it covered both natural persons and statutory bodies, which Ibrahim v. JSC ruled it covered both, contrary to what its title logically suggests. Everything about the statute was shrouded in confusion and ambiguity.

It is clear from the above that the courts in England entertained a great doubt as to whether the Act was applicable to contracts at all but felt bound to apply it to some contracts in order not to run afoul of the supremacy of the English parliament. Had the proportionality test and the EC been available to English courts then, with its trenchant criticisms of the PAPA, the PAPA would have failed the proportionality test, and the English courts would have been able to override the English parliament, declare it incompatible with the EC and strike it down. Like Sujaja Balan rightly observed, in an independent discovery that tallied with my own independent discovery about the POPA, had the English courts adverted to torts, they would have easily discerned that the Act was not designed to apply to all types of contracts, including contracts of statutory employments. 

Actually, there is no basis for making a distinction between government contracts of all kinds because, virtually all government contracts have statutory flavours. That is what the Court of Appeal decided in its recent decision in CBN v. Adani Mega System Ltd[37] delivered Apr 25, 2025 when it held that the Pre-Shipment Inspection of Export Act, CAP. 25, LFN 2004 and the Pre-Shipment Inspection of Import Act, CAP. 26, LFN 2004 gave the contract that fell for construction statutory flavour and therefore, not a simple contract. The point being stressed for my purpose, is not about the jurisdiction of the FHC but the fact that, all government contracts are almost always a form of adhesive contract, like contracts of statutory employments. For further example, the Procurement Act also has serious bearings on a host of contracts entered with government in Nigeria, which must be taken into consideration for the validity of the contracts. Why should they be distinguished from the contracts of statutory employment when it comes to the applicability of the POPA. There is really no justification for that:

“The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by the legislature.’ As the authors of Bennion, Bailey and Norbury say, the courts give a wide meaning to absurdity in this context, ‘using it to include virtually any result which is impossible, unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter-mischief[38].”         

 

Part of the things the courts take into consideration to avoid absurd results in interpretation is to discern the purpose of the statute and to note that discerning the purpose of a statute becomes very difficult: “the more inference of meaning has to be drawn in circumstances which are remote from the use of language being interpreted[39]” and the guiding principle in such circumstance of remoteness of language of the statute being construed, is to bear in mind that:

“An objective interpretation is…called for because statutes are addressed to third parties who are bound by them and have to be able to understand them in order to know what their legal obligations are[40].” 

  

All this mean that, where the language is remote to the circumstances, it is inapplicable. Where there is ambiguity, which arises from the remoteness of language used in the text, as in the POPA and PAPA, which could result in absurdity by choice of a broad interpretation, the restrictive interpretation should be adopted, which avoids absurdity or injustice. Clearly underscored above is that, notwithstanding that the statute gives the corporation in Bradford Corporation v. Myers the statutory duty [power] to sell coke to the public, in as much as the cause of action in question arose from breach of agreement [contract] in the corporation’s agent’s [public officer] not delivering the coke through the agreed channel, the breach of contractual obligation arising therefrom, being contractual, and not created in the Corporation’s Statute, was not amenable to the PAPA. What the House Lords, in a nutshell, seemed to have said unwittingly, in Bradford Corporation v. Myers, was that; extraneous statutes in the like of the PAPA, will not apply to contracts because, they did not create the obligations arising therefrom and because, by their nature, they do not apply to contracts, but only torts arising from the administrative actions of statutory authorities through their agents. 

Likewise, notwithstanding that a statute gives statutory department power or authority or duty to recruit staff and provide for its conditions of service, the contract formed thereby is governed by the terms agreed upon when breaches occur and cannot be liable to the POPA but only to the LA, which clearly imposed itself on the contract, while the POPA only clearly imposed itself on tortious liabilities. The public department is not thereby forced or obliged to recruit any particular person as staff nor was any particular person obliged to accept its terms. It is the contract that brought both sides together. The contract is formed by consensus ad idem. This is different from a situation where a government department or authority is obliged to repair roads and in doing this, it damaged another person’s property. This situation has no contractual underpinning. That is why the POPA is riddled with the legalese of tort-and-administrative-law-like duty, act, neglect or default. Thinking along the same line, about how the English courts fell into the error of applying the PAPA to contracts, Sujata Balan [supra] in his erudite article cursorily came to the same conclusion as I did:

“Early English cases were against the application of the 1893 Act to contracts made by a public authority…In holding that the 1893 Act did not apply, Farwell J said that he could not see ‘where to draw the line’ between a breach of contract protected by the Act and the one which was not.

It is submitted that the English courts could have easily taken the position that the words ‘acts, neglect or default’ indicated Parliament’s intention to apply the Act of 1893 to torts only and not to contracts. Unfortunately, they did not do so and soon after Sharpington, the courts began to take the stand that if a public authority enters into a contract for the carrying out of public duty, the protection of the Act may apply.”  

 

From this, it is clear the learned author pointed out that the missing link was that it never occurred to the English courts that the PAPA had the legalese of torts arising from administrative violation of rights and therefore, strictly applicable to injuries arising out of these actions, negligence and defaults of omnibus, train and tram drivers. I think the English courts fell into this error for three reasons, which are absent in Nigeria. First, the Parliament is supreme in England, whereas the Constitution is supreme in Nigeria and the courts in Nigeria can therefore readily find the constitutional authority to declare a statute invalid, the English courts were at that time very loathsome to invalidate a statute. That was why it was impossible for the English courts to see the incongruity in holding that the language of the PAPA was nebulous and yet, gave it the widest application. Secondly, the English courts, like the Nigerian courts, were not aware that the nebulous language of the PAPA was in consonance with the nebulous injuries arising from the nebulous actions, negligence and defaults covered by torts and administrative violations of rights like the Police slapping a person or assaulting him in a case of unlawful arrest. 

The nebulous language of the PAPA was in a nutshell, actually consistent with the imprecise nature and nebulousness of torts, as distinct from contracts with specific terms and conditions spelt out from the beginning. The third is that, at that point in English legal history, there was no elaborate bill of rights as now in the European Conventions [EC], against which the municipal laws could be tested for validity and, as a moderating power on the English parliament, and there was no ECHR as extraterritorial court, whose real duty is a moderating effect on the decisions of local courts on issues affecting the conventions. All these are absent in Nigeria, except the accidental glossing over the possibility of considering that the POPA was only applicable to torts arising from administrative actions, neglect or defaults. Nigeria has its Constitution since independence, and the ACHPRA since 1983. However, the judiciary in Nigeria, being in fidelity with judicial precedents from England and, unfortunately these were precedents decided under an entirely different legal system, soon fell into the same controversy, as was in England before the short-lived PAPA was repealed. The POPA, being in pari materia with the PAPA, was deemed to take the same judicial interpretation, a view, with respect, very suspicious because of the different constitutional systems. Constitution is supreme in Nigeria; parliament is supreme in England.

I refer to earlier NIC’s decisions on this issue[41], especially Eze’s case [supra] for a more detailed exposition of why S. 2(a) of the POPA was not designed to apply to contracts but only to torts. It was not also by accident that all the judicial authorities before Ibrahim v. JSC, which upheld the applicability of S. 2(a) of the POPA, only applied it to torts and never to contracts because, these authorities were based on consideration of how the PAPA was initially applied in the UK. These decisions reflected the true textual tenor of S. 2(a) of the POPA.

No authority in the expansive school of thought has ventured to explain why the POPA was applicable to contracts, especially contracts of statutory employments. All these authorities did were to say, because public servants are public officers and the government departments and their agents [public officers] that employed them and committed the breach of contract in question are also public officers, both of them are automatically regulated by the POPA. As we know, the POPA also applies to acts or neglects or defaults of public officers against purely third-party strangers. Does it apply because both are public officers? Does it regulate their relationship because both sides were public officers? The answer to both posers is capital NO. This shows clearly that the POPA does not regulate any contractual relationship, including contracts of statutory employments, but purely non-contractual injuries and can only apply to public officer-employees in exactly the same manner it applies to third party strangers. 

For example, if accident happens to a public officer at the workplace and it was caused by another public officer, and the victim-public officer sues outside the three-month, even though, a public officer, s/he is for that purpose a third-party stranger, in the same footing with a purely private citizen, but only happens to be public servant, and the POPA will apply to protect the wrongdoer, if we discount other arguments. In that situation, the public officer-victim is suing in his personal capacity irrespective of being a public officer. In other words, the POPA does not regulate the employment of public servants as public officers but rather the contract of employment executed between them does. It is not the ‘Public Officers (Contracts) Act’ but “Public Officers (Protection) Act” and there is nothing in the text that suggests it applies to contracts. So, it does not apply to contracts, including contracts of statutory employments. The Supreme Court appreciated this in CIL Risk & Asset Mgt. Ltd v. Ekiti State Government & Anor (2020) 12 NWLR (Pt. 1738) 203 (SC) 270, C-F by saying: “The instant suit was founded on contract…Thus, the applicable Limitation Law was section 4(1) of the Limitation Law of Ekiti State.” It is definitely because the Limitation Law of Ekiti State mentions contracts that the Supreme Court said, it is the applicable limitation statute to contracts. 

That being so, there is no basis to say it is applicable to contracts of statutory employments. The POPA does not regulate the employment of public servants as public officers, but rather, the contract of employment executed between them. As the POPA does not talk about contracts or any voluntary relationships but only protects the public officers from suits by third parties who are not in contracts with them, on injuries suffered as a result of their actions, it could not have applied to contracts. As it is, the POPA has nothing absolutely to do with voluntary relationships or reciprocal rights but rather about one-sided protection of public officer while S. 7(1)(a)-(b) of the LA is about reciprocal protection against stale suits for both sides to contracts and therefore, in tune with the concept of contract. If we go by any other interpretation than this, the POPA must equally be applicable by the same logic to all types of contracts with government departments because of the broad construction of its protection of wrongdoer public officers without distinction. There would be no basis for the exclusion of contracts with statutory flavours.  

But all the authorities in the restrictive school of thought explained why the POPA is not applicable to contracts, including contracts of statutory employments, even, if in half measures. The mere fact that both sides in public employment are public officers does not negate the contract of employment and its terms and conditions that brought the relationship into being. In fact, the statutory flavour, which makes the public employees, public officers, is a term of the contract incorporated by the employment letter and therefore, the contract continues to regulate the relationship of the public officer-employees with the public department employers as public officers, while the POPA regulates the non-contractual relationship of public officers with third parties and not the relationship of co-contracting parties, as in contract of statutory employment or any contract. Therefore, for any statute which is not directly incorporated by the employment letter to have bearing on such contract, it must unequivocally demonstrate that it applies to contracts like S. 7(1)(a)-(b) of the LA did. That is the purport of Bradford Corporation v. Myers, NPA’s case, Osakue v. FCE down to Kwara State Poly’s case.

Historically, torts by their nature, are injuries that do not normally broach waste of time because, they excite passions, except the nature of the injury is such that totally incapacitated the victim and prevents him from taking prompt action within the three months, such as an accident that renders the victim bedridden for longer than the three months. Even in such situation, the victim’s next-of-kin do take prompt action. But as it often happens, in the heat of the accident, to avoid public outcry, the public officer tortfeasor or public department often takes immediate necessary remedial actions, like rushing the victim to the hospital for emergency medical attention, for which reason, the victim and his next-of-kin are lulled to believe the government would be responsible and do justice and therefore, failed to take legal actions within the short period of three months. But events have shown that immediately after the three months, government will change stance, and the unsuspecting victim will be compelled to file action in court outside the three months, and government will unabashedly raise the POPA against the action. That is the usual scenario in Nigeria. The present case is a testimony to that, as there is the allegation of promises about missing file and countless visits to resolve the logjam.

Otherwise, the victim normally takes immediate action because, there is usually no prior cordial relationship between the parties. For this reason, it seems reasonable to suggest that the original intention of the parliament was to capture only torts, which normally suffer the advantages of contract that witnesses are more readily available in cases of contracts and most often, contracts do not need eyewitnesses but documentation, which is often the case with government contracts, which are always written whereas, torts are by their nature the only types of cases where oral evidence of eyewitnesses are most often sine-qua-non and where the availability of eyewitnesses are very fluid and unstable because, often, the eyewitnesses are third parties and it might be difficult and impracticable to trace them after a short period.

In addition, victims of torts often have alternative options or remedies in insurance and social security schemes that take care of most of the injuries arising from torts. There is the comprehensive motor insurance and the third-party insurance schemes, which is compulsory for all vehicles. For workers, there are the Employees Compensation Scheme established by the Employees Compensation Act and the likes. It is therefore rational to conclude that the victim had explored the other options if actions are not filed in courts timeously that, they have waived the option of court actions and therefore, reasonable to be statute-barred from recourse to court actions within a short period. But even at that, three months is still too short, and this is proved by virtually all nations around the world doing away with POPA-like discriminatory statute with excessively short limitation periods, as militating against access to court. Even Malaysia that still retains its POPA-like statute, has increased the grace period to 36 months, which is three years. And that exactly is what S. 8 of the LA provides for torts arising from negligence. And it must be noted that the LA was enacted without the selfish interest of the colonial masters and must be deemed realistic.

All these alternative means of securing remedies for torts are not available for injuries arising from contracts, for which reason, it is impracticable to allot short limitation periods to contracts. Besides, contractual relationships being products of mutuality and cordiality, contracting parties are loathsome to rushing to courts to litigate breach of contracts because, they still want to retain their original cordiality and business relationships, and this is much more applicable to contract of employment and other labour relations. So, legal action is a last resort. There are often ADR clauses in most large contractual undertakings, including contracts of statutory employments – ACAS in the UK. Time is definitely needed to explore ADR mechanisms in all contractual disputes, instead of rushing to courts. This is also applicable in statutory employments where most statutory departments have provisions for compulsory pre-action notices for the purposes of exploring ADR resolution of issues, as alternative to legal actions in courts. Upholding the POPA on contracts would therefore mean that the courts in Nigeria are unwittingly preventing the growth of ADR mechanism to resolving contractual disputes in Nigeria and thus, turning the nation into pariah status in the comity of nations and clogging the courts dockets. ADR mechanism is not also useless in torts and administrative violation of rights, and even in criminal matters, as one of the greatest weapons of decongesting the courts.

The various provisions of the Trade Disputes Act even make ADR mechanisms compulsory in most trade disputes, which includes, employment cases taken up by trade unions. All this shows that it is most unlikely and unreasonable that the parliament actually intended that the POPA should apply to any type of contract at all, including contracts of statutory employment. To hold otherwise is to turn Nigeria to a pariah status amongst the comity of nations and interfere with the mobility of labour, which is the modern currency of labour and productivity in the modern world because, no knowledgeable worker in the knowledge-based economy of the modern world, would like to work in an environment far removed from government friendly employment policies, as indicated by the inimical nature of the POPA. These were the reasons that induced virtually all countries of the world to abolish POPA-like statutes in their polities and replaced them with longer and equitable limitation periods for government and citizens alike and for both torts and contract actions. And few of them that still retain POPA-like statutes, like Malaysia, has greatly increased the limitation period to 36 months: three years.

All in all, relying on the authorities of Osakue v. FCE [supra] 36, B-C; Chime v. Elikwu (1965) NMLR 71 and Ngun v. Mobil Producing Nigeria Unlimited (2013) LPELR-20197 (CA) 31-32, I am convinced that the scenario playing out in this instance of irreconcilable conflicting decisions on the applicability of the POPA to contracts of statutory employment without settled ratio decidendi common to them, is one in which an exception to the doctrine of stare decisis is invited, whereby the trial court is at liberty to choose which of the countless irreconcilable conflicting decisions of the Supreme Court without discernible ratio decidendi, it is of the opinion that it is correct. The law was stated beautifully in Ecu-Line v. Victor Adenekan (2001) 10 NWLR (Pt. 721) 261 (CA) 281-282, D wherein the Court of Appeal held:

“It is trite law that where an inferior court is faced with two conflicting judgments of a Superior Court Idigbe AG CJ…in Okolie Chime & Anor v. Ofili Elikwu & Anor (1965) NMLR page 71 stated at page 78 thus:

‘A passage in Salmond’s Jurisprudence which, with all respect I accept reads:-

‘Where authorities of equal standing are irreconcilably in conflict, a lower court has the same freedom to pick and choose between them as the schizophrenic court itself see 11^th Edition p. 207’

…and…reiterate that a lower court when faced with two conflicting judgments of a superior court is free to elect which one to follow: Ebiteh v. Obiki (1992) 5 NWLR (Pt. 243) page 599. Applying the above authorities makes me elect to follow Leventis Technical Ltd v. Petrojessical Enterprises Ltd…”

 

The Supreme Court earlier established this same ratio in NEPA v. Onah (1997) 1 NWLR (Pt. 484) 680 (SC) 688-689, H-C:

“I must emphasise, with respect, that the learned counsel was not correct to say that the Court of Appeal was in error in not finding fault with the trial High Court for its failure to follow the decisions of the cases cited above. It is quite clear that the decision of the Court of Appeal in Adegoke Motors Ltd v. Dr. Babatunde Adesanya & Ors. (1988) 2 NWLR (Pt. 74) 108 at 121, was in conflict with the court’s other decisions in NNPC v. Jacobs Aziegbehin (supra) and UBS Trustees v. Nigergrob Ceramic Ltd (supra)…

Where there is no discernible ratio decidendi common to the decisions of a superior court and the court has handed down conflicting decisions, the lower court or court of co-ordinate jurisdiction is free to choose between the decisions which appeared to it to be correct.”

 

See also Osakue v. FCE [supra] 36, B-C; Chime v. Elikwu (1965) NMLR 71 and, Ngun v. Mobil Producing Nigeria Unlimited (2013) LPELR-20197 (CA) 31-32. The Supreme Court introduced the concept of “no discernible ratio decidendi” in addition to the decisions being in conflict, to the issue, in NEPA v. Onah. And this was adopted in Osakue v. FCE. I have searched and could not find the judicial interpretation of the phrase “no discernible ratio decidendi common to the decisions”. I therefore take it to mean that decisions may be conflicting alone, in that their rationes decidendi are clearly perceptibly opposite, but based on different considerations or interpretations of the same statute without citing the previous one but with exactly the same statutes construed. This is when the concept of implied overrule may apply. 

On the other hand, decisions may be conflicting and at the same time without clear and perceptible reason for the conflict, such that, the reader of the two or more decisions on the same issue is confounded in pinpointing what exactly is the ratio or as to why the rationes decidendi were different. This is often the case where, with profound respect, there are several conflicting decisions of an appellate court on the same issue in a persistently inconsistent manner, particularly so, when these emanate from the Supreme Court and the two other levels of superior courts so that, the whole system is in disarray. And that is exactly the situation we are now on the issue of POPA.

By irreconcilable conflicting decisions without discernible ratio decidendi common to them, I take it therefore to mean, when there are two or more conflicting decisions on exactly the same issue from the same court in which previous decisions were not followed because, the subsequent decisions were either not aware of them or did not bother to distinguish them or overrule them directly or by implication such that, each of the decisions did its own thing its own disparate way such that, the reader is confounded as to why the difference and as to what the central nut between them was. This is the situation that gives rise to absence of ratio decidendi common to all the decisions or rather, the presence of no discernible ratio decidendi common to all the disparate decisions. A decision could only be taken to have impliedly overruled the previous if and only if, even though, it did not specifically discuss the previous, but gave a reason that shows it anticipates the previous and explained why it would not follow it, such that, had the previous decision been cited before it, its reasons would have been sufficient to justify the departure from it.       

The issue of the applicability or non-applicability of the POPA to contracts of statutory employment, with the utmost respect, reached the crescendo of confoundedness when two panels of the Supreme Court gave diametrically opposed decisions on in pari materia provisions of S. 59(1) of the NIPOST Act and S. 2(a) of the POPA the same day, Dec 2, 2022, in Aba’s case [supra] and Kwara State Poly’s case [supra] respectively. Definitely, there could not be a discernible ratio decidendi in the two decisions to anchor stare decisis. And when the subsequent Anolam’s case did not mention Aba’s case and Kwara State Poly’s case and held that the POPA was applicable to contracts of statutory employment, the confoundedness exacerbated. 

I found that, virtually in all the cases deciding that the POPA is applicable to contracts of statutory employment, the opposing Supreme Court’s authorities, which are galore, were either not cited or not discussed, and that is not generally the case with those deciding that the POPA is not applicable to contracts, including contracts of statutory employment. They always went back to the memory lanes and cited and discussed authorities from both sides of the divides before concluding that the POPA was not applicable to contracts. See for example, RMAFC’s case and NPA’s case. For these reasons, I am convinced that the situation herein comes briskly under the rare exception created by the Supreme Court that, where there is no discernible ratio decidendi common to the decisions, the lower courts are at liberty to choose which of the conflicting authorities to follow. Of course, the choice cannot be arbitrary. Reasons must be proffered, as the discretion must be exercised judicially and judiciously. I therefore take the phrase “no discernible ratio decidendi common to the decisions” to mean a state of confoundedness generated from long and unremitting inconsistent decisions on the same issue.

I noted with respect that in Osakue v. FCE [supra] the Supreme Court frowned at bypassing its latter decision for its previous decision but nonetheless, upheld the ratio that, this could only be done in a situation of no discernible ratio decidendi common to these decisions. I therefore take it that this very situation, as explained earlier, is applicable here so that, I am covered by the Supreme Court’s ratio. The avalanche of irreconcilable conflicting decisions on S. 2(a) of the POPA are both conflicting and at the same time without a discernible rationes decidendi common to them. I therefore, in fidelity to the authorities, hold that, I am at liberty to make a choice from the two schools of thought and state my reasons, as I have done before now, and will still do in respect of the other reasons I have not yet stated. I felt bound by the long lines of Supreme Court’s authorities in the restrictive school of thought culminating in Kwara State Poly’s case [supra]. Kwara State Poly’s case, though earlier than Anolam’s case, is therefore my authority for this part of the decision.

At the point of writing this decision, I was tempted to state a case to the Court of Appeal, particularly considering the Supreme Court’s ratio in Osakue v. FCE that, in cases of its conflicting decisions, the wise thing, is to state a case to it. I was originally persuaded to take this course, in view of the fact the Court of Appeal is the ultimate court for NIC’s civil decisions, but I recoiled, when I realised that, it was not possible to state a case on the conflicting decisions of the Supreme Court to the Court of Appeal, which cannot in turn state a case to the Supreme Court on a case stated to it, but must decide it, and which decision would not put an end to the issue, more particularly so, that the Supreme Court still retains jurisdiction on appeals emanating from the NIC’s civil decisions, in spite of S. 243(4) of the Constitution, by virtue of S. 295(3) of the Constitution. I also found that, only questions of constitutional interpretations or applications could be referred by case-stated to the higher courts and not, questions of interpretation or applications of ordinary statutes, meaning that, what I have done with the textual reconstruction of S. 2(a) of the POPA, did not actually require stating a case to the Court of Appeal. 

Therefore, in actual sense, I was actually only left with the option of making a choice between the two schools of thought on the question of textual reconstruction of the POPA and give my reason, as the only option. I am more particularly persuaded in this course, as a trial judge, as admonished by His Lordship, Uwais [CJN former], of airing my views to fill up the gaps observed on the situation of irreconcilable conflicting decisions of the three levels of superior courts in Nigeria leading to no discernible ratio decidendi common to the three layers of the superior courts; and more particularly so, with utmost respect, the Supreme Court, with the hope that, if there is appeal against this decision, the Court of Appeal would seize the opportunity to do the needful. The only other option left, is by way of calling on the Supreme Court directly to reconcile its conflicting decisions, take a firm stand, choose one of the two schools of thought and directly and specifically overrule the long line of the opposing authorities. But this right belongs to the parties and their lawyers, and not to the judges of the lower courts – William v. Daily Times (1990) 1 NWLR (Pt. 124) 1 (SC) 37, D-E. So, my choice of choosing the Supreme Court’s authority, which I believe is right and giving my reasons to fill up the gaps, to enable the Court of Appeal, if there is appeal against this decision, and the Supreme Court, if a case is stated from the Court of Appeal to it, to reconcile its opposing positions and come up with new locus classicus that would put an end to the problem of the POPA. 

And the area of the POPA that would have necessitated my reference by way of case-stated to the Court of Appeal, is an area that purely deals with a new angle of vision to the construction of S.2(a) of the POPA to show that, it was not meant to apply to contracts, including contracts of service and, to also show by textual analysis of Ibrahim v. JSC, which has become the anchor of all the subsequent decisions that the POPA is applicable to contracts, including contracts of statutory service that, the Supreme Court did not decide that issue in Ibrahim v. JSC and so, it could not have been the basis of the subsequent ratios that the POPA was applicable to contracts, including contracts of statutory employment. And textual reconstruction of statute, not being constitutional interpretation, cannot ground case-stated. All other areas of innovations by which I decided that the POPA was inapplicable to contracts, including contracts of statutory employment, are necessitated by the Third Alteration Act, by which I showed its radical effects on the POPA. They are therefore the normal fortes by which lower courts can distinguish the decisions of appellate courts and decline to follow them, as authorities are only binding in contexts.

At the end, I chose to air my views also on the tiny area of textual reconstruction of the POPA and Ibrahim v. JSC which involved making a choice between the countless conflicting decisions of the Supreme Court and the two other layers of the superior courts in Nigeria on the question of applicability of the POPA to contracts, including contracts of statutory employments, as a fitting addendum to the varied distinguishing factors I earlier treated in this decision. Textual reconstruction aided by direct evidence from Hansard Report is itself a distinguishing factor, having not been explored hitherto. That being the only way by which this could be brought to the notice of the Supreme Court, as lawyers have refused to do the needful. I believe this is in tandem with the admonition of His Lordship, Uwais [former CJN], as earlier cited, that trial court judges have the judicial duty to develop the law, by filling the gaps in the decisions of the appellate courts for the appellate courts to consider and approve or disapprove and thereby, stabilise and develop the law, as there can be no room for inconsistencies in the decisions of a judicature, whose system, is based on the twin doctrines of precedent and stare decisis.

I particularly felt bound to look more critically on the issue because, in my constant research on it, being a hot currency of defence litigation in Nigeria, I kept bumping on continuous arrays of irreconcilable conflicting decisions from the NIC, the Court of Appeal and the Supreme Court such that, it appeared that my research would never come to an end on an issue, which the Supreme Court has repeatedly held, has been settled – RMAFC’s case, 270, E – and which for that reason, was  supposed to be a walkover, but surprisingly, became malignantly virulent with the sheer volume of irreconcilable conflicting decisions from all the three layers of the superior courts in Nigeria on it and the rapidity at which they occur, which now made it a major preoccupation of litigation to the chagrin of: precious judicial time, resources and certainty in the law and, serving as a clog on contractual and employment/labour relations in Nigeria and thus, weighing heavily against the economic development of the country and, turning Nigeria into a pariah status against the spirit of S. 254C-(1)(f) of the Constitution. 

This shows it is direly necessary now to make the law very clear and certain on the breadth of the applicability of the POPA and its constitutionality, by convincingly putting an end to the cause of the inconsistencies. In this wise, the admonition of Lord Neuberger[42], the former President of the UK Supreme Court on the role and functions of the UK Supreme Court [UKSC] becomes apposite. His Lordship sets them out as follows:

1. When a law has become unclear, to clarify it. 
2. To correct errors in the law.
3. To modify outdated law in tune with current exigencies.
4. To establish a locus classicus on irreconcilable conflicting decisions. 

 

The Supreme Court had echoed the above while espousing the basis of its power to overrule itself in Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) 250 (SC) 274-275, G-A. As has been shown before now in this decision, S. 2(a) of the POPA suffers from all the ills identified above, for which the duties of the Supreme Court, as itemised above, become direly needed. It was further stated[43] that the UKSC will readily depart from its previous decisions when:

“The earlier decision must, for example, be out of keeping with some broad consideration of justice, contemporary social conditions, or modern perceptions of public policy (Herrington v. BRB [1972] AC 877).”

 

This is akin to the policy encapsulated in S. 254C-(1)(f)-(h)&(2) of the Constitution. The surrounding circumstances regarding the POPA in Nigeria are caught by the above broad considerations for a departure from the expansive school of thought that the POPA is applicable to contracts, particularly contracts of statutory employment, more particularly so in the current reality of S. 254C-(1)(f)-(h)&(2) of the Constitution, which gives the NIC the vires to pay attention to the current trends in the adjudication and application of laws impacting labour matters around the world. Halsbury’s Laws of England, 4^th Edit, Vol 28, p. 266, para 604 says the trend in England is that:

“Since 4^th June 1954 the periods of limitation applicable to actions against public authorities are the same as those applicable to similar actions against private persons.”  

 

That is 71 years ago that England had brought equality in the matters of limitation of actions and access to courts. The Supreme Court anticipated and approved the proportionality test in Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76 (SC) 110-111, B-B when it held that: 

“Where an enactment regulates the right of access to the court in a manner to constitute an improper obstacle to access to court, such enactment could be appropriately regarded as an infringement of section 36(1) rather than an infringement of section 6 of the Constitution… This and similar decisions of this court which have held that a pre-action notice is not inconsistent with section 6(6)(b) of the Constitution should not be taken to mean that in certain circumstances the particular requirement can never constitute infringement of the exercise of judicial powers by the courts or abridge the citizen’s right of access to court. Such last-mentioned situations will definitely be inconsistent with the Constitution.”   

 

The trajectory of S. 2(a) of the POPA, as has been painted in this decision, clearly shows that, it constitutes unjustifiable hindrance to the right of access to court, discriminatory and established inequality before the law, and must be declared invalid. Given the fact that, it is only the Supreme Court that can put a firm end to this ugly situation, with utmost respect, and particularly that this decision has newly examined the recondite issue under the Third Alteration Act and thereby raised new constitutional questions, hitherto unexamined in relation to the POPA or which, even though, previously examined before the Third Alteration Act, but which has assumed an entirely new dimension  by the force of the Third Alteration Act, if there is an appeal against my decision herein, the Court of Appeal, with the utmost respect, ought to exercise its powers under S. 295(3) of the Constitution, to state a case to the Supreme Court on this knotty issue so that, the issue could be rested once and for all, by the Supreme Court handing down a locus classicus on it, in which it would not only reconcile all its previous irreconcilable conflicting decisions in casu, but would also be able to reconcile its new locus classicus with the radical effects of the Third Alteration Act on the POPA as a whole and, also reconcile it with the fresh angle of vision espoused on the textual reconstruction of S. 2(a) of the POPA itself, hitherto unexamined. 

The lawyers involved, also have the legal duties in such appeal, as co-officials in the temple of justice and in fidelity to public good, to look at the possibility of stating a case to the Supreme Court on the nagging issue or asking the Supreme Court to overrule an array of decisions in a school of thought they choose not to side with, by showing how these decisions meet the conditions precedent for departure. In either case, this will enable the Supreme Court to constitute a full panel and possibly, invite amici curiae, to assist it to resolve this lingering issue. This is a must because, it is not permissible to have two opposing judicial schools of thought on a legal issue in a common law jurisdiction anchored on precedents and stare decisis. 

In any event, it comes to be that, through either textual reconstruction of S. 2(a) of the POPA or, through the auspices of the Third Alteration Act, the POPA is not applicable to all contracts, including contracts of employment with statutory flavour and, it is also unconstitutional in virtue of S. 254C-(1)(f)-(h)&(2) of the Constitution ushered in by the Third Alteration Act and other related international conventions, which give S. 17 of the Constitution justiciability vigour. Having reached this juncture, the decision must come to an end.

 

 

 

CONCLUSION

In the final analysis, and for all the reasons given and all the authorities cited in the body of this decision to show why the POPA is inapplicable to all contracts, including contracts of statutory employment, why it is equally unconstitutional, the POPA is once more declared inapplicable to all contracts, including contracts of statutory employment. It is also declared unconstitutional, null and void. It is accordingly struck down while the LA and its state versions are declared the applicable statutes. The NPO is consequently dismissed. 

Having taken into consideration the cascading fortunes of the Naira, I award cost of N300T [Three Hundred Thousand Naira] only against the defendants/objectors and in favour of the claimant/respondent. The curtain is drawn.  

 

…………………………………

Hon. Justice Oluwakayode Ojo AROWOSEGBE

Presiding Judge

Enugu Division

National Industrial Court of Nigeria