The Presiding Judge, Enugu Judicial Division of the National Industrial Court, Hon. Justice Olukayode Arowosegbe, has declared Section 2 of the Public Officers Protection Act unconstitutional, null, and void.
The Court ruled that 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, and that it also promotes chicanery on the part of the government as employer against the citizen-public-employees.
Justice Arowosegbe held that it would be unfair, unreasonable, and disproportionate to read Section 2 of POPA into any contract, including contracts of statutory employment, because the grace period is unreasonably short, and the employee could not be found liable for filing outside three months.
The Court reasoned that it would be unfair to interpret a statute in a way that would run counter to labour/employment rights.
On the recent decision of the Supreme Court in Anolam’s case that S. 2(a) of the POPA applies to statutory employment because, it regulates the relationship between the two sides to the employment, since both sides are public officers, Justice Arowosegbe distinguished that, the case did not emanate from the NIC and was also not decided under the Third Alteration Act, because the cause of action arose February 21, 2003 when the plaintiff’s appointment was terminated, and the Third Alteration Act came into effect March 4, 2011.
From facts, the claimant- Dr. Anthonia had claimed six reliefs verging on declarations on his entitlement to retirement benefits, and an orders to compel the defendants to produce her withheld file and pay her terminal benefits, and damages of N50Million.
In defence, the defendant- Independent National Electoral Commission argued that Dr. Anthonia’s 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.
The learned counsel argued that the causes of action herein arose on 23/9/2022 when a pre-action notice was served and the case was filed on February 29, 2024, which is clearly outside the three-month grace provided by S. 2(a) of the POPA, and therefore statute-barred, and urged the Court to dismiss the case.
The learned counsel further submitted that Dr. Anthonia’s action was not a continuation of injury but a one-off cause of action, and urged the Court to dismiss the case in its entirety.
In opposition, Dr. Anthonia’s counsel, I. O. Adani Esq argued that the POPA does not affect a continuous cause of action and would not apply in the 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.
In a landmark ruling, the presiding Judge, Justice Olukayode Arowosegbe after holistic analysis of the submissions of both parties and the latest judicial trend on the issue of POPA applicability towards providing an answer to the lingering conflicting decisions of the three hierarchies of superior courts in Nigeria on the issue held 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.
In addition, the Court stated that the defendants-objectors did not file their pleadings before setting the NPO down for hearing, an act that is against NIC Rules, which forbid demurrer. The Court dismissed the NPO for being incompetent, as it was not filed in accordance with the law’s procedure.
Furthermore, the Court reasoned that the questions of payment or non-payment of pension and gratuity, being constitutionally mandatory and specially protected by the Constitution, are fundamental constitutional right questions, and cannot therefore be affected by limitation laws, irrespective of the mode by which the suit was commenced.
Relying on the Supreme Court decisions, Justice Arowosegbe held that POPA, being an ordinary statute, cannot regulate substantive constitutional rights, and that the POPA does not apply to bar actions brought to enforce the constitutional right to terminal benefits, mandatorily guaranteed by SS. 173(1)-(2) of the Constitution.
“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.”
On the recent decision of the Supreme Court in Anolam’s case that S. 2(a) of the POPA applies to statutory employment because, it regulates the relationship between the two sides to the employment, since both sides are public officers, Justice Arowosegbe distinguished that, the case did not emanate from the NIC and was also not decided under the Third Alteration Act, because the cause of action arose February 21, 2003 when the plaintiff’s appointment was terminated, and the Third Alteration Act came into effect March 4, 2011.
Furthermore, examining the POPA and the Supreme Court’s decision in Anolam’s case in the eye of the Third Alteration Act, Justice Arowosegbe maintained that doing so is one of the permissible exceptions to stare decisis as provided for in the Section 254C-(1)(f)-(h) & (2) of the Constitution which provides that the NIC shall have and exercise non-obstante jurisdiction.
The Court reasoned that 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.
Justice Arowosegbe maintained that employees, being the weaker parties, must be protected against the sharp practices of employers, be they public employers or private employers, that 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.
Justice Arowosegbe reasoned that 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.
The Court averred that S. 7(1) of the LA has bearings on grace periods for institution of suits in contracts because it incorporates explicitly all types of contracts, that POPA cannot be anything but an expropriating statute and must therefore be narrowly construed, while the LA must be broadly construed, being truly a beneficent statute.
“Is it reasonable and fair to introduce 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.
Justice Arowosegbe reasoned along with the Supreme Court’s denunciation of the POPA in Adigun v. Ayinde that the time limit in the POPA was too short for access to Court, which 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.
“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 nullify them judicially.” The Court reasoned.
Justice Arowosegbe concluded that, truly, the POPA constitutes a hindrance to the right of access to courts and must be so declared by the courts. The POPA is all-around disproportionately injurious to public servants/workers and the citizens as a whole.