IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFOE HIS LORDSHIP HONOURABLE JUSTICE E. N. N. AGBAKOBA
DATED 4TH APRIL 2017 SUIT NO: NICN/ABJ/131/2016
BETWEEN:
MUSTAPHA USMAN JEGA ……………………………………. CLAIMANT
AND:
SECURITIES AND EXCHANGE COMMISSION (SEC)………. DEFENDADNT
REPRESENTATION:
- O. OLATUNDEfor the claimant
OGECHI OGBONNA for the defendant
J U D G E M E N T
The claimant filed this Complaint on 18th April, 2016, along with the frontloaded documents, claiming against the defendants as follows:
(i) AN ORDER of MANDATORY INJUCTION COMPELLING the Defendant to pay the full retirement benefits/outstanding retirement benefits in respect of 18 years of service of the claimant immediately.
(ii) AN ORDER that the claimant is entitled to be paid the sum of N56,509,334.34.00(fifty six million, five hundred and nine thousand, three hundred and thirty four naira, thirty four kobo) only and all his complete retirement benefits and entitlement as a Director in the Security and Exchange Commission.
(iii) AN ORDER for the Defendant to be paid N56,509,334.34.00 (fifty six million, five hundred and nine thousand, three hundred and thirty four naira, thirty four kobo) only as Special Damages being the total retirement benefits of the claimant outstanding unpaid.
(iv) AN ORDER compelling the Defendant to be paying monthly pension of N1, 205,906.02 to the claimant from end of April 2016.
(v) 10% internet on the Judgment sum from date of Judgment until the defendants fully pay up the judgment sum
The defendants in their statement of defence set down their Paragraph 25
That the defendant in further response to the entre claims made by the claimant including the payment of the sum of N56,509,334.34.00 (fifty six million, five hundred and nine thousand, three hundred and thirty four naira, thirty four kobo) or any other sum of money alleged and claimed by the claimant is statute barred.
The defendants also filed a NOTICE OF PRELIMINARY OBJECTION filed on 13th February, 2017 and supported by a 6 paragraph affidavit deposed to by Nduwueze Anyama, praying the Court for: An Order of this Honourable Court dismissing this Suit for being statute barred and therefore incompetent and outside the jurisdiction of this Honourable Court.
GROUNDS FOR THE OBJECTION
- This Suit and all claims therein are Statute barred. The Claimant/Respondent commenced this matter against the Defendant/Applicant by a Writ of Summons and Statement of Facts dated and filed on 18th April, 2016 after the expiration of over three (3) months from the time when the alleged wrongdoing alleged by the Claimant in paragraphs 10, 11, 12, 12 of the Statement of Facts took place.
- The Defendant filed a memorandum of conditional appearance dated 9th August, 2016 and in paragraph 25 of the Statement of Defence dated 9th August, 2016 where the Defendant pleaded that the that the entire allegations and claims made by the Claimant in the suit filed by the Claimant was statute barred.
- The Claimant filed a Reply to the Statement of Defence dated 5th December, 2016 and filed on 7th December, 2016 and in response to the issue of his suit being statute barred the Claimant admitted that his action was filed out of time by stating “14. In response to paragraph 25 of the statement of defence, the claimant states that his action is not statute barred as this suit was filed in April, 2016 while the claimant retired in the month of September, 2011”.
- The Claimant admitted that his suit was filed beyond the three (3) months stipulated by Section 2(a) Public Officers Protection Act.
WRITTEN ADDRESS FILED BY THE DEFENDANT/APPLICANT IN SUPPORT OF THE NOTICE OF PRELIMINARY OBJECTION
Learned Counsel tot the defendants O. Ogbonna Esq. contended that any person used in Section 2 POPA includes artificial persons like the Defendant. A-G Federation vs. Abacha [2010) 17 NWLR part 1221 page 1 at 24 paragraphs D — E, and also in Sani V President Federal Republic of Nigeria (2010) 9 NWLR part 1198 page 153 at page 170 paragraphs C — D.
She submitted that under our law the record of the Honourable Court is binding upon the parties and also the Court. Sapo v Summonu [2010] 11 NWLR part 1205 page 374 at 395 paragraph C. Defendant Counsel also submitted that where limitation is raised, the Honourable Court is expected to look at the processes filed especially the Writ of Summons and the Statement of Claim to see when the cause of action arose and the Writ of Summons which shows when the suit was filed to enforce the alleged right of action. Kolawole Industrial Co Ltd v AG Federation [2012] 14 NWLR part 1320 page 221 at page 243 paragraphs C — F.
The defendants raised for determination, one sole ISSUE
Whether the Claimant who did not sue on or before the expiration of three (3) months from the date of the accrual of his alleged cause/right of action can maintain an action and be granted any judicial relief based upon his alleged cause of action i.e. alleged refusal of the Appellant to re-instate him into its employment?
Responding in the negative, counsel submitted that the Claimant commenced this action in December, 2011, after a minimum of forty – four (44) months had elapsed and hence caught by the period of limitation provided by Section 2(a) Public Officers Protection Act; Officer-in-Charge GPG v Gudu [2012] 2 NWLR part 1177 page 148 at page 161 paragraph G.
He argued that the result of the suit being statute barred is that it is now immaterial to look at the substance of the matter or any other consideration. My Lord our authority is the decision in Obi Akejule vs. Delta State Government [2009] 17 NWLR part 1170 page 292 at page 307 paragraph E.
Counsel submitted that the Supreme Court has held that a suit filed out of time by even 30 months is statute barred, leading to loss of any right of action being sought therein. Olagunju v PHCN Plc. (2011) 10 NWLR part 1254 page 113 at 126 paragraph C — E; Sulgrave Holdings Inc. v FGN & Others (2012) 17 NWLR part 1329 page 309 at 334 paragraph G — E, and at 335 paragraph E.
He contended that the Honorable Court lacks the competence to delve into this suit as the action of the Defendant is protected by Section 2(a) Public Officers Protection Act. Sulgrave Holdings In v FGN & Others [2012] 17 NWLR part 1329 page 309 at 335 paragraph E.
It is counsel’s submission that the National Industrial Court which is created by the 1999 Constitution as amended (2011) is bound to abide and follow the decisions in Olagunju v PHCN (supra), Sulgrave Holdings v FGN & Others (supra), Sulgrave v FGN (supra), Kolawole Industrial Co Ltd v AG Federation (supra) and this Honourable Court in Sani v President Federal Republic of Nigeria, and apply same to dismiss the suit before the Court.
He submitted that admitted facts require no further proof, that a party to a suit is bound by his pleadings including any admissions against his interest. Sections 21(1) and 122 Evidence Act, 2011; Ntuks v NPA [2007] 13 NWLR part 1051 page 392 at page 411 paragraph H; Okuleye v Adesonya [20141 12 NWLR part 1422 page 521 at page 535 paragraphs B — C; Adeusi v Adebayo E20121 3 NWLR part 1288 page 534 at page 558 paragraph B; Ipinlaye II v Olukotun (1996)6 NWLR (Pt.453) 148 SC.
The Claimant/Respondent filed a 6 paragraph COUNTER AFFIDAVIT TO THE APPLICANT’S MOTION DATED 3RD, FEBRUARY, 2017 (dated 27th February, 2017), deposed to by Martha Onyeneke.
The claimant also filed a WRITTEN ADDRESS IN OPPOSITION TO DEFENDANT/APPLICANT’S MOTION DATED 8TH FEB, 2017
With the ISSUE
Whether or not this suit is statute barred?
Learned Counsel O. Olatunde Esq submitted that the Public Officers Protection Act (POPA) invariably provides that limitation periods must be calculated from the cessation of continued damage or injury. Section 2 of the Public Officers Protection Act.
He contended that failure to pay the claimant/respondent his retirement benefits and/or entitlement to wit: pension after having worked and earned same is an injury and/or damage in a continuing form which will only cease upon payment of that retirement benefits. AREMO II V. ADEKANYE (2004) 13 NWLR (PT 891) 571 © 593 — 594 the Supreme Court per Edozie JSC.
It is counsel’s submission that the claimant having worked and earned his pay must be paid as the claim of the claimant is a liquidated debt in which Section 2 of the Public Officers Protection Act does not and cannot apply. ADEYEMI POPOOLA & 2 CR5 V. A.G KWARA STATE & 3 ORS (2011) ALL FWLR (PT. 604) 175 @ 190 — 191, per Denton-West, JCA; WEMA SECURITIES AND FINANCE PLC V. NIGERIAN AGRICULTURAL INSURANCE COOPERATION (2012) ALL FWLR (PT. 807) 410 © 457, per Nweze, JSC.
He cited Section 15(2) of the Pension Reform Act Cap A40 Laws of the Federation of Nigeria 2014, which states as follows;
Where there is such a debt, the employer shall immediately issue a written acknowledgment of the debt to the relevant employee and take steps to meet the shortfall and such debt shall not be affected by the provisions of any limitation law in force for the time being’
The defendants filed their REPLY ADDRESS ON POINTS OF LAW BY THE DEFENDANT REPLY ADDRESS ON POINTS OF LAW BY THE DEFENDANT filed on 3rd March, 2017.
Defence Counsel made submissions as to pension and gratuity under the law, any guise or conditions, citing in support ADEYEMI POPOOLA & 2 ORS V A.G KWARA STATE & 3 ORS (2011) All FWLR (PT. 604) 175 @ 190 — 195, and WEMA SECURITIES AND FINANCE PLC V NIGERIAN AGRICULTURAL INSURANCE CORPORATION (2012) All FWLR (PT. 807) 410 @457, reported in (2015) 16 NWLR Part 1484 page 93 at 138 paragraphs B — F. He argued that the case of WEMA SECURITIES AND FINANCE PLC V NIGERIAN AGRICULTURAL INSURANCE CORPORATION (supra) the issue was a consideration of the obligation from overdraft facilities granted which was a banker — customer relationship and not the situation in the facts that led to this matter in which there is no contract between the Claimant and the Defendant.
It is Defendant counsel’s submission that under our law that a decision is good law but is applicable only to the facts and circumstances decided therein. Udo v State 120161 12 NWLR part 1525 page 1 at page 25 paragraphs A – B. Furthermore, that an alleged wrong or cause of action is different from the effect which may be recurrent and that limitation of action of action is determined from the time of the alleged wrong and not the consequences. Aboyeji vs. Lateju (2012) 3 NWLR part 1288 page 434 at page 451 paragraph.
Counsel to the defendant also submitted that admissions especially against interest is binding upon the person admitting same and no other person. Our authority includes the decision of the Supreme Court and the Court of Appeal respectively. Adeusi v Adebayo [20121 3 NWLR part 1288 page 534 at page 558 paragraph B; Independent National Electoral Commission v Oshiomhole [2009] 4 NWLR part 1132 page 607 at 662 paragraph B — C.
On the 8th March 2017 parties adopted their written addresses adumbrated their respective positions and this matter was reserved for this ruling.
Court’s Decision
Having carefully summarized the positions of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the defendant’s application.
And in resolving this issue I shall adopt eh issue as formulated by the Claimant ;
Whether or not this suit is statute barred?
The defendants are contending that this suit is caught up with 2(a) of the Public Officers Protection Act 2004.
Now the statute in question is section 2(a) of the Public Officers Protection Act 2004, which provides as follows –
Where any action, prosecution, or other 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 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.
(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 a continuance of damage or injury, within three months next after the ceasing thereof:
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.
It has been well settled in law that “in order to determine the period of limitation, one has to look at the writ of summons and the statement of claim to see when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. This in my view can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred”. ALHAJI (DR) ADO IBRAHIM V. ALHAJI MAIGIDA U. LAWAL (2015 Legalpedia SC P8T9) Per J. I. Okoro, J.S.C. See also EGBE V. ADEFARASIN & ANOR (1987) L NWLR (PT.47)1’’
In the case of AGBOROH v. WAEC (2014) 43 NLLR (PT. 134) 31 NIC @ 34 this court held that for the determination of whether a suit is statute barred or not involves the determination of the date on which the cause of action arose and comparing same with the date on which the suit was filed. If the date on which the suit was filed shows that the claimant came outside the period within which he should have come to court, the suit will said to be statute barred. This comparison can be done without taking oral evidence from witnesses.
Looking at the claimants reliefs;
(i) AN ORDER of MANDATORY INJUCTION COMPELLING the Defendant to pay the full retirement benefits/outstanding retirement benefits in respect of 18 years of service of the claimant immediately.
(ii) AN ORDER that the claimant is entitled to be paid the sum of N56,509,334.34.00(fifty six million, five hundred and nine thousand, three hundred and thirty four naira, thirty four kobo) only and all his complete retirement benefits and entitlement as a Director in the Security and Exchange Commission.
(iii) AN ORDER for the Defendant to be paid N56,509,334.34.00 (fifty six million, five hundred and nine thousand, three hundred and thirty four naira, thirty four kobo) only as Special Damages being the total retirement benefits of the claimant outstanding unpaid.
(iv) AN ORDER compelling the Defendant to be paying monthly pension of N1, 205,906.02 to the claimant from end of April 2016.
(v) 10% internet on the Judgment sum from date of Judgment until the defendants fully pay up the judgment sum
And the averments in his statement of fact and witness depositions particularly paragraphs 10, 10 in his statement of fact and averments 11, 12 and 13 of his statement on oath I find that the claimants cause of action is the non-payment or refusal, neglect or failure of the defendants to pay the claimant his full retirement benefits. The claimant retirement from the pleadings was with effect from the August 2011.
In considering payments particularly periodical payments the position of the law has been well defined Learned author Ikechukwu D. Uko Esq. in his book Preliminary Objections to Jurisdiction ©2013 2nd Edition Published by Law Digest Publishing Co. Lagos at page 586 stated “Where a claim is for arrears of salary, such a claim pre supposes entitlement to such salary and denial of payment when and as it fell due. LUTH & MB Vs. ADEWOLE [1996] 7 NWLR (Pt. 463) 701.
In the circumstance the claimant was entitled to this retirement benefits when he retired, that his claim for retirement benefits fell due upon his retirement. That means the cause of action of the claimant accrued on the 17th August 2011.
As I had mentioned the claimant instituted this action on 18th April 2016. Which by simple mathematical calculation means that this action was commenced 18th April 2016 – 17th August 2011 = four (4) years, Eight (8) months and one (1) day after the cause of action arose.
The next question is to determine whether the defendants are entitled to the protection afforded by the Public Officers Protection Act.
To whom does the POPA apply or is the Public Officer Protection act applicable to this suit.
The word Public Officer has been defined in section 7(1) of the Public Officers (Special provision) LFN2004 (formerly Act No. 10 of 1976) to mean;- “ any person who holds or has held office in
(b) the public service of a state or federal government…
