IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
Before His Lordship:-
HON. JUSTICE E.D. E ISELE – JUDGE
DATE: THURSDAY 12TH JANUARY 2017 – NICN/ABJ/133/2016
BETWEEN
- FUNMILAYO DAVID OMOSULE– CLAIMANT
AND
OIL AND GAS FREE ZONE AUTHORITY – DEFENDANT
REPRESENTATION: Parties absent. Kalu Nwoke for Claimant. Defendant unrepresented.
RULING
The Claimant commenced this action by a writ of complaint filed on the 18th of April 2016. In the writ he claims the following:
- a)DECLARATION that letter FZA/P/088 dated April 2011 issued to Olufunmilayo O. Funmi notifying him of the Board Resolution of the Defendant suspending him from work is not a letter addressed to the Claimant and to or meant to suspend claimant from his appointment in the employment of the defendant.
- b)DECLARATION that the purported suspension of the Claimant from the employment of the Defendant vide letter reference FZA/P/088dated April 2011 and addressed to Olufunmilayo O. Funmi in wrongful, oppressive, unjustifiable and therefore null and void.
- c)DECLARATIONthat Claimant’s names known to the Defendant upon employment which has not changed is Funmilayo David Omosule or for short Funmi Omosule.
- d)DECLARATION that the application and or continued application by the Defendant of letter No. FZA/P/088 dated April 18th, 2011 addressed to Olufunmilayo O. Funmi to purportedly suspend claimant from the employment of the Defendant is oppressive, unjustifiable and therefore null and void and of no effect whatsoever.
- e)DECLARATION that the stoppage of claimant’s salaries and allowances on the basis of the purported suspension letter addressed to Olufunmilayo O. Funmi reference FZA/P/088 dated April 18the 2011 since April 2011 till date is oppressive, unjustifiable and therefore null and void and of no effort whatsoever.
- f)A Mandatory Order of Court setting aside the purported letter of suspension addressed to Olufunmilayo O. Funmi dated April 18th 2011 with which claimant was suspended from office and ordering immediate reinstatement of the claimant to his employment with the defendants.
- g)A Mandatory Order ofCourt requesting the Defendant to pay to the claimant all the outstanding salaries and allowances due to him since April 2011 up to the time that he is reinstated.
- h)A Mandatory OrderofCourt placing the claimant on grade level 17 and or the position and grade level his mates who were managers like him in April 2011 are currently occupying in the employment of the defendant,
- i)Cost of this suit and Legal fees.
The writ was filed along with other accompanying processes. On the 29th July 2016 the Defendant filed a Preliminary Objection seeking an order of court strikingout this suit on the following grounds:
- a)That the suit is statute barred
- b)The Court lacks jurisdiction to entertain the suit.
The Applicants maintain that the suit was commenced after the expiration of 3 months from when the act being complained of occurred. That Section 2 of the Public Officers protection Act mandates that all actions against public officers and public institutions must be commenced within 3 months after the occurrence of the Act. And that the Honourable Court lacks jurisdiction to entertain a suit seeking redress under the Public Officers Protection Act after the expiration of 3 month thereof.
The objector formulated this sole issue for determination: This being: Whether this suit can be determined by this Court in view of Section 2(A) of the Public Officers Protection Act. (POPA).
Section 2(a) of the POPA provides:
“Where any action, prosecution, or proceeding 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 authorities,or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provision shall have effect
- a)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 continuance of damage or injury within 3 months next after the ceasing thereof…”
The objector at 2.3 maintain that the Claimant has filed this suit challenging his suspension and seeking for reliefs of an alleged wrongful act that occurred on the 18th of April, 2011, 5 years before the commencement of this action. That, when an action is statute barred, it connotes that a plaintiff who might have had a cause of action loses the right to enforce the cause of action by the judicial process because the period of time laid down by the limitation law for instituting such an action has elapsed. Counsel cited the case of MUHAMMED V, MILITARY ADMINISTRATOR PLATEAU STATE (2001) 16 NWLR (PT. 740) page 570 in supporting their contention.
The Claimant/Respondent state at 3.04 of their address that a look at the Statement of Claim of the Claimant shows that the actions of the defendant that has led to the commencement of this action are such clearly outside its statutory and constitutional responsibility. That it was so because the Claimant’s name from the time he joined the employment of the Defendant has always been Funmi Omosule or Funmilayo David Omosule. But when the Defendant chose to be mischievous it addressed a letter of suspension from its office to Olufunmilayo O. Funmi purporting same to be meant for the complainant and indeed used it to suspend claimant from its employment. The respondent submitted that the fact that the Defendant is using a letter addressed to Olufunmilayo O. Funmi a person clearly different in all ramifications from the Claimant is an act clearly taken in bad faith and ultra vires its statutory and constitutional powers.
Now, the above is what the Claimant is alleging in his pleadings. The Defendant Objectors have not filed a Statement of Defence. The law regarding preliminary objection on point of law challenging the validity of the institution of an action can only be determined at the initial stage by reference to the
Pleadings particularly the Statement of Claim. If the issue cannot be determined on the pleading then the court ought to proceed to a full hearing and decide the point after evidence. See DANGIDA V. MOBIL PRODUCING NIG. UNLTD(2002) FWLR PT. 97) 659 Ratio 5. See also the Supreme Court’s decision in WOHEREM V. EMEREUWA (2004) 13 NWLR part 890 @ Page 406 ratio 5. Where the Court held: But if facts exist which must first be deduced in or established by evidence to enable a point of law to be sustained, the Preliminary objection may not properly be taken.”
Here the Claimant has alleged in his pleadings that the Defendant acted in bad faith and ultra vires it’s statutory and Constitutional Powers. I therefore hold that the Preliminary objection cannot properly be taken, it is best raised in the defendant’s pleading, to wit, a Statement of Defence. The Preliminary objection is therefore struck out. The Defendant is ordered to file and serve its Statement of Defence and other processes on the Claimant within 21 days of the making of this ruling. I refer to Order 22 r. 1 and r. 2(1) as well as Order 23 r. 6(1) of the FCT High Court Civil procedure Rules. 2004 as applicable in this Court by virtue of Order 15 of the National Industrial Court Rules 2007.
The rule is that a party may raise any point of law by his pleading, which point shall be disposed of by the trial judge at or after the trial.
Having struck out the Preliminary Objection the Court hereby assumes jurisdiction by virtue of Section 254 of the CFRN.. 99 as amended.
Ruling is entered accordingly.
Case is adjourned to the 22nd February 2017 for hearing.
___________________________________
HON. JUSTICE E. D. E. ISELE
JUDGE
