Whether the Public Officers Protection Act Apply in Cases of Pension, Gratuities & Outstanding Salaries

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CASE TITLE:  BARRISTER TALIB S. RAJI v. MINISTER, FEDERAL MINISTRY OF EDUCATION & ORS (2021) LPELR-55728(CA)

JUDGMENT DATE: 30TH SEPTEMBER, 2021

JUSTICES:

  • ABUBAKAR DATTI YAHAYA
  • STEPHEN JONAH ADAH
  • PETER OLABISI IGE

COURT DIVISION:   ABUJA

PRACTICE AREA:  PUBLIC SERVICE- PUBLIC OFFICERS PROTECTION ACT/LAW

FACTS:

The Appellant was appointed as Under-Secretary on 11th June, 1987 at the Usman Dan Fodio Teaching Hospital, Sokoto, on a pensionable appointment and was later promoted to Assistant Director of Administration by the Teaching Hospital in 1990. He was later transferred to the 5th Respondent (National Mathematical Centre, Abuja) as a secretary in 1992. In the course of the Appellant’s employment, the National Mathematical Centre purportedly dismissed the Appellant from service by a letter.

The Appellant protested and appealed to the Honourable Minister for Education and the Federal Ministry of Education (1st and 2nd Respondents respectively) over his illegal dismissal from service and accompanied same with an application for retirement. The National Mathematical Centre, with the approval of the 1st and 2nd Respondents, wrote a letter substituting the Appellant’s purported dismissal with retirement.

The Appellant had been on pensionable appointments for a period well over ten years to entitle him to be paid his pension after retirement. Despite all the correspondence and personal visit to the National Mathematical Centre, the Respondent refused to pay all his retirement benefits.

The Appellant then instituted an action at the National Industrial Court, Abuja seeking declaratory reliefs against the Respondents for his pension and gratuity. He also claimed other retirement benefits and general damages. The Respondents denied the claims of the Appellant and a notice of preliminary Objection was filed challenging the competence of the suit on the premise that the Appellant’s case was statute barred based on the provisions of the Public Officers’ Protection Act.

After considering the preliminary objection, the National Industrial Court upheld the objection that the case was statute barred, the action having been filed outside the statutory period of three months from the date the cause of action accrued to the Appellant and was therefore dismissed.

The Appellant was dissatisfied with the judgment of the trial Court and appealed to the Court of Appeal.

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ISSUES FOR DETERMINATION:

The appeal was determined on the lone issue:

  1. Whether the learned trial Judge was right in holding that the claim of the Appellant did not fall within the exceptions to Section 2(a) of the Public Officers Protection Act and was therefore statute barred. 

COUNSEL SUBMISSIONS:

Learned Counsel for the Appellant submitted that the Supreme Court has made it clear that the public officers protection law is intended as much as within the limits of the law to protect a public officer from distraction and unnecessary litigation but never intended to deprive a party of legal capacity to ventilate his grievances on the face of stark injustice. Learned Counsel further argued that the provision of the Public Officers’ Protection Law is not absolute and that the provisions do not apply in an action for recovery of land, breaches of contract, claims for work and labor done.  Counsel stated that the case of the Appellant being a demand of his pension and gratuity constitutes an exception to the applicability of Public Officers Protection Act. Furthermore, that pension is a category of payment which constitutes a continuous injury which is also an exception to the Act.

Counsel for the 1st and 2nd Respondent submitted that the Appellant’s claim does not fall within the exceptions of Section 2(a) of the Public Officer’s Protection Act and that the Appellant’s claim for pension and gratuity under the Public Officer’s Protection Act is applicable. Counsel urged the Court to dismiss the Appellant’s appeal

Learned Counsel for the 3rd-5th Respondents argued that the authorities cited by the Appellant in considering the interpretation and application of Section 2 (a) of the Public Officers Protection Act, do not represent the correct statement of the law and went ahead to suggest that the Public Officers’ Protection Act, applies only to claims for work and labor done. 

DECISION/HELD:

In a unanimous decision, the appeal was allowed. The judgment of the National Industrial Court was set aside and the case was remitted back to the trial Court for hearing on its merits by another Judge of the Court.

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RATIO:

  1. PUBLIC OFFICER – PUBLIC OFFICERS PROTECTION ACT/LAW: Whether the Public Officers Protection Act applies in cases of pension, gratuities and outstanding salaries

“…From the record of appeal, the claim of the Appellant is for pension, gratuities and outstanding salaries. It is now beyond controversy that Public Officers Protection Act, does not apply to cases of recovery of land and breach of contract. See the cases of NPA v. Construsioni (1974) 1 All NLR (Pt. 463; Soule v. LEDB (1965) LLR 118, FGN & Ors. v. Zebra Energy Ltd (2002) LPELR – 3172 (SC), ROE Ltd v. University of Nigeria Nsukka (2018) LPELR – 43855. Salaries, pensions and gratuities are not only product of contract of employment and the law, they are constitutional. In Abdulrahman v. NNPC (2021) 12 NWLR (Pt. 1791) 405, the Supreme Court considered the issue of Limitation and the right of a party to his pension and terminal benefits after retirement from his employment. The Supreme Court construed Section 12(1) of the NNPC Act Cap N123 LFN 2004 which Section provides: “12(1) Notwithstanding anything in any other enactment, no suit against the Corporation, a member of the Board or any employees of the Corporation for any act done in pursuance or execution of any enactment or law, or of any public duties or authority, or in respect of any alleged neglect or fault in the execution of such enactment or law, duties or authorities shall lie or be instituted in any Court unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuance of damage of injury, within twelve months next after the ceasing thereof”. (Underlining mine). This provision is similar to the provision of Section 2(a) of the Public Officers Protection Act under consideration in the instant case. The text of the limitation clauses in the NNPC Act and the Public Officers Protection Act only varies in the time frame. While NNPC Act has set 12 months Limitation Clause, the Public Officers Protection Act sets three months. “Per ADAH, J.C.A.

  1. PUBLIC OFFICER – PUBLIC OFFICERS PROTECTION ACT/LAW: Whether a public officer who acted in bad faith, maliciously or without legal justification will be deprived of the protection of the Public Officers (Protection) Act

“Legal principles are not always inflexible. Sometimes, they admit of certain exceptions. The law of limitation of action recognizes some exceptions. Thus, where there has been a continuance of the damage, a fresh cause of action arises time to time, as often as damages is caused. The second exception is that it does not cover a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty. In the instant case, the exception to the general rule in Section 12(1) of the Nigerian National Petroleum Corporation Act, to wit, the failure and default to pay the appellant’s pension and medical benefits, constituted the appellant’s contention in the case. The Corporation or the respondent failed to act in good faith or acted in abuse of office or maliciously or with no semblance of legal justification. Therefore, the exception applied. [A.G. Rivers State v. A.G. Bayelsa State (2013) 3 NWLR (Pt. 1340) 123, Aremo II v. Adekanye (2004) 13 NWLR (Pt. 891) 572, Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 referred to] See pp. 418-421.

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In the instant case, the failure of the respondents to pay the entitlement of the appellant cannot from the facts and circumstances of this case be excused. Their failure is inexcusable as it is an act of bad faith and a continuous injury which falls into the exception allowed under Section 2(a) of the Public Officers Protection Act. The nonpayment of the retirement benefits and other entitlement of the appellant is an act outside the colour of the office of the respondents and outside their statutory and constitutional responsibility to pay the terminal benefits of the appellant. Section 2(a) of the Public Officers Protection Act, therefore, does not offer any protection to the respondents in the instant case. “Per ADAH, J.C.A. 

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