A dissenting Judgment, Cannot Be Court Judgment

In the Court of Appeal holden at Ibadan on Wednesday, May 3, 2007, before their lordships Musa Dattijo Muhammed, Justice, Court of Appeal; Admin Adamu Augie, Justice, Court of Appeal;

No: CA/1/84/2005

Between

Mr. A.O Awokunle-

(Appellant)

And

National Electric Power Authority (NEPA)-

(Respondent)

It is well settled that dissenting judgment, however, powerful learned and articulate, not the judgment of the court. The judgment of the court is the majority judgment, which is the binding judgment. So held the court of Appeal Holden at Ibadan, Nigeria in a unanimous leading judgment delivered by His Lordship A.A. Augie JCA, his learned brothers M.D. Muhammad, J.I Okoro (JJCA), concurring while dismissing the appellant’s appeal. Dr Joseph Nwobike for the appellant and Mr. Titus O. Ashaolu (SAN), with Biodun Dada for respondent. The facts are as contained in the body of the judgment.

The appellant was an employee of the respondent until he was retired on the March 16, 1992, for rejecting an offer of appointment as Officer III (Accounts). Upon retirement, he collected his pension at the Ibadan District Office until May 1999 when he was directed to be collecting his pension at Oyo Town, which he complied with. In January 1999, the Federal Government announced a 150 per cent pension increment for pensioners and the respondent implemented the increment for all its retirees from July to December 2000. The appellant was paid for the months of July and August at the Ibadan District Office and was told to collect the balance at the Oyo District Office. The appellant, however, complained to the respondent in a letter dated April  17, 2002, that he was not paid for the months of September to November and the respondent replied him in a letter dated May 15, 2002, which reads:

“On the instructions of our client, we are hereby by this letter demanding the immediate payment to our client the unpaid 150 per cent pension increase for the months of September, October and November 2000, which by our client’s calculation total N70,200.00. Take notice that in the event of your failure to comply with this demand, this letter serves to give you notice of the intention of our client to institute legal actions against ‘your authority on the subject matter”.

On June 29,2004, the appellant carried out his threat and instituted an action against the respondent at the Osogbo Judicial Division of the Federal High Court, which was subsequently transferred to the Ibadan Judicial Division of the same court on the orders of the Osogbo. After pleadings were filed and exchanged at Federal High Court, Ibadan and the matter set down for hearing, the respondent filed a motion on notice dated April 25, 2005, praying the Federal High Court for the following:

• An order of the honourable court setting aside/striking out the plaintiff’s suit as being grossly incompetent and abuse of court process;

• And order of the honourable court striking out the plaintiff’s suit for lack of jurisdiction.

Grounds of this application

• The suit is not properly instituted before this court; • The action/suit against the defendant is statute barred;

• The action of the plaintiff is barred by statute of limitation under the Public Officers’ Protection Act, Cap. 379 Laws of the Fed­eration;

• The plaintiff’s cause of action arose on May 15, 2002 and. the plaintiff brought his action on June 29,2004.

In response, the respondent filed an eight-paragraph counter-affidavit.

The application was argued on June 14, 2005, and in his ruling delivered on July 29, 2005, the learned trial Judge, Molokwu J., did not accept that the application was misconceived.

“To my mind, since the defendant had already declared its stand on the matter that it was not owing the plaintiff the said pension increment, it is at that point the cause of action arose. It cannot, therefore, be continuous. The effluxion of time when the action was instituted had stripped him on the right to enforce the cause by judicial process because it had become statute barred. The limitation period prescribed for the action having expired, the action is not instituted. Accordingly, it has to be struck out. Being the situation, this action is not properly placed before this court. It, therefore, lacks the jurisdiction to entertain the same. For this reason, the plaintiff’s action is hereby struck out”.

Dissatisfied, the appellant filed a notice of appeal containing one ground of appeal and in the appellant’s brief prepared by Joseph Nwobike, it was submitted that the issue arising for determination in this appeal is as follows:

“Whether or not the learned trial judge was right in striking out this suit on the ground that it was statute barred under Section 2 (a) of the Public Officers (Protection) Act, Cap. 379, LFN 1990”.

The respondent, however, submitted in its brief settled by Titus O. Ashaolu (SAN) that the sole issue of determination is as follows:

“Whether or not the respondent being a creation of statute and a corporate body (artificial person) is subject to the provision of Section 2 (a) of the Public Officers’ Protection Act CAP. 379, LFN 1990″.

In my view, there is not much difference between the issues formulated by both parties. They both raise the same question ­whether the respondent herein is a “public officer” within the meaning of Section 2 (a) of the Public Officers’ Protection Act (hereinafter referred to as the Act), which provides:

“Where any action, prosecution, or other proceedings is commenced against my person for 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 such Act, law, duty or authority, the following provisions shall have effect:

• The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof”.

The appellant’s position is that the Act is not applicable to this case and should not have been applied in the first place. It was submitted that until 1998, the state of the law had been that the protection provided under Section 2 (a) of the Act is not available to institutions but to public officers as individuals.

It is the appellant’s contention that since officers of the respondent do not form part of the public services of the federation and/or state, the respondent is not a public to enjoy the protection under Section 2(a) of the Act, citing NEPA V. Olagunju & Anor (2005) 3 NWLR (pt. 913) 602, wherein, it was submitted that in allowing the appeal, this ‘ court per Omage, JCA held that protection under Section 2(a) of the Act cannot avail the respondent.

On its part, the respondent submitted that the scope of the applicability of Section 2 (a) of the Act covers both natural person and legal persons (artificial persons), and the protection therein could be enjoyed by corporate bodies created by statue like the respondent herein. It is also well established that there is a distinction between a ratio decidendi and abiter dictum. The ratio decidendi of a case represents the reasoning or principle or ground upon which a case is decided. Obiter simply means in passing, incidental, cursory. Obiter dictum reflects, inter-alia, the opinions of the judge, which do not embody the resolutions of the court. The expression of a judge in a judgment must be taken with reference to the facts of the case, which he is deciding, the issues calling for decision and answers to those issues – see Al.C. Ltd. V. NNPC (2005) 1 NWLR (937) 563 Sc.

In NEPA v. Olagunju (supra), this court had to determine whether the trial court was right to consider the merit of the case when the respondents sued more than three months after the appellant dismissed them from it service. This court considered the provisions of the same Section 2 (a) of the Public Officers’ (Protection) Act Cap. 379 LFN 1990.

Obviously, the judgments of Ibiyeye, JCA and Okunola, JCA that the trial at the lower court was nullity because the respondent’s action was brought about 30 months after the cause of action arose is the majority judgment in NEPA V. Olagunju (supra), and that of Omage, JCA, to the contrary on this issue is a mere obiter dictum, which is not binding on this court.

Be that as it may, the respondent also submitted that the aim of paragraphs (q), ® and (s) of sub-section 1 of Section 251 of the 1999 Constitution is to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agencies was a party, therefore NEPA, being an agent of Federal Government of Nigeria can enjoy the provision of Section 2 (a) of the Act.

Consequently, I agree with the respondent that the lower court was right. The end result is that the appeal lacks merit and is hereby dismissed. No order as to costs.

Dr. Joseph Nwobike for the appellant and Mr. Titus O. Ashaolu (SAN), with Bidoun Dada for respondent.