LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

COMMANDANT ENITAN LISK CAREW -VS- CIVIL DEFENCE,

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA.

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

 

DATED 26TH JUNE, 2018                                                   SUIT NO: NICN/ABJ/409/2015

 

BETWEEN

COMMANDANT ENITAN LISK CAREW                                                            CLAIMANT

 

AND

  1. CIVIL DEFENCE, IMMIGRATION AND PRISON SERVICE BOARD
  2. NIGERIA SECURITY AND CIVIL DEFENCE CORPS
  3. THE SPEAKER HOUSE OF REPRESENTATIVES                             DEFENDANTS
  4. THE HEAD OF SERVICEOFTHE FEDERAL

     REPUBLIC OF NIGERIA

REPRESENTATION

EGANG AGABI for the claimant

EJIKE ORJI for the 2nd Defendant

NWENYI PIUS for the 3rd defendants

No Representation for the 1st and 4th Defendants

JUDGMENT

  1. This is a decision on the application filed by the 2nd and 3rd defendants both seeking orders striking out the claimant suit. The 2nd defendant had filed their Notice of Preliminary Objection on the 7th October 2016 urging the court to dismiss the claimant suit on grounds of want of jurisdiction in that the suit was ; –

                  1)            It was statute barred and

                  2)            The condition precedent was not met prior to bringing this suit.

  1. The 3rd defendants filed their Notice of Preliminary Objection on the 14th November 2017 seeking an order of this court striking out this suit for want of jurisdiction premised on the following ground; –

1)      The Action Statute Barred under Section 2A of the Public Officers Protection Act Cap 41 LFN 2004 and Section 20 (1) (2) (a) of the Nigerian Security and Civil Defence Corp Act 2003

2)      The matter was incompetent and frivolous.

  1. WRITTEN ADDRESS IN SUPPORT OF NOTICE OF PRELIMINARY OBJECTION

 

  1. ISSUES
  2. Whether the Claimant’s action brought against the 3rd Defendant is Statute Barred considering the fact that the claimant is a Public Officer and the Speaker of House of Representative who is the 3rd Defendant in this matter is also a public officer and action is commenced ten years after the cause of action arose contrary to Section 2(2) of the Public Officers Protection Act and Section 20(1)(2)(a) of the Nigeria Security and Civil Defence Corps Act, 2003

  1. Whether this Honourable court has jurisdiction to entertain this matter where the suit is incompetent and frivolous.

  1. Learned Counsel referred to Section 20(1) & (2) (a) of the Nigeria Security and Civil Defence Corp Act, 2003 which laid credence to the fact that an action brought against public officer after 3 months from the date the cause of action arose, automatically becomes statue barred.

  1. He submitted that Public Officers Protection law has the effect of making a cause of action dead if action has not been taken within the stipulated time. EGBE V. ADEFARASIN & ANOR (1985) NSCC. 643 at 658; OKEKE V. BABACA/A/39/97; (2000) 3 N.W.LR. (Pt. 650) 644AT652.

  1. Furthermore, that the implication of not complying with this time limit is that the claimant has lost his right of action, relief and enforcement as was held in the case of DAUDU V. U.N.A.M (2002) 17 NWLR PT. 796 PG.384 PARA.A.

 

  1. It is counsel’s submission that the inability of the claimant to comply with the Section 2(2) of the Public officers Protection Act has raised the question of jurisdiction of this Honourable court to entertain this matter. That the fundamental issue in any matter before the court is the issue of jurisdiction which the court must first determine so as not to invalidate the whole proceedings. 7UP BOTTLING CO. Vs. ABIOLA &SONS (2001) 13 NWLR 730 P. 469 @ P.513 PARA. F; ALAO VS. ABIOLA (1987)4 NWLR (PT.64)199; FUNDUK ENGINEERING CO Vs. MC ARTHUR (1995)4 NWLR (PT.392) 640.

 

  1. Furthermore, that the court must ensure that the subject matter of the case is within its jurisdiction and that there is no feature in the case which prevents the court from exercising its jurisdiction. IAL 361 INC Vs. MOBIL OIL (NIG) PLC [1999]5NWLR PT. 601 P.9 20-21 PARA. A-G.

 

  1. Claimant filed a WRITTEN ADDRESS IN OPPOSITION TO 3RD DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION on 15th November, 2015.

  1. ISSUE 1: THAT THE MATTER IS STATUTE BARRED

  1. Learned Counsel submitted that the Public Officers Protection Act does not apply to bar a relief sought in connection with an error committed in a purely judicial capacity. ABIODUN V A.G. FEDERATION (2007)15 NWLR (PT. 1057) 359 AT 413 PARA A-B; FEDERAL REPUBLIC OF NIGERIA V IFEGWU (2003) 15 NWLR (PT. 842) 113 at 118 pans. F-C.

 

  1. Counsel posing the questions: a) whether the defendants here have acted in a purely judicial capacity; b) when can a body not being a court of law be said 10 have acted in a purely judicial capacity?, relied on the case of BABA V NCATC (1991) NWLR (PT.192) 388 12 (1991) 7 SC Pa 58 at 68 pans. 20-25.

 

  1. He argued that upon receipt of the recommendation that the claimant be dismissed from service, the 1st and 2nd Defendants’ only duty was to forward the recommendation to the Public Service Commission which alone has the power to dismiss the claimant. That the defendants cannot therefore seek protection under the Public Officers Protection Act. ALAKP1KI V GOVERNOR OF RIVERS STATE (1991) 8 NWLR (PT.211) 575 at 599 -600.

 

  1. On when public officer not protected under Public Officers (Protection) Act, and on where issue of malice may arise in connection with Section 2(a) of Public Officers (Protection)Act, counsel cited the case of UN1LORIN V ADEN1RAN (2007) 6 NWLR (PART 1031) pg. 506- 507.

 

  1. It is counsel’s submission that Section 2 of the Public Officers Protection Act does not apply to cases of contract. In the cases of contract. In the case of OGUN STATE GOVERNMENT V DALAMI (NIG) LTD. (2007) ALL FWLR (PT.385) 438 at 452 para. A.

 

  1. Counsel maintained that the relationship between employers has been held to be a contractual relationship created by the terms and condition of service.  NIGERIA GAS COMPANY LTI). (2003) FWLR (PT.169) 1196 at 1198, held I and 2; BABA V NCATC (1991) 7 SC (PT.1) 58 at 64 paragraphs 15 and 16.

 

  1. Counsel further submitted that this action is based on contract and Section 2 (a) of the Public Officers Protection Act cannot protect the defendants who acted in breach of the contractual terms as contained in the Federal Civil Service Rules. OSUN STATE V DALAM1 (NIG) LT1). (2007) 9 NWLR 91038) 66 AT 83-84 PARA F-E, per KATSINA-ALU, JSC; NIGERIAN PORTS AUTHOURITY V CONSTRUZIANI GENERAL; FARSURA CAGEFAR APA & ANOR (1974) 1 All NLR (PT.2) 463 at pp467-477.

 

  1. ISSUE 2: THE NON SERVICE OF PRE ACTION NOTICE ON THE 2ND DEFENDANT.

 

  1. Counsel argued that it is just sufficient if the cause of action, the name and address and the relief sought is stated. Counsel assuming , without conceding , that the Claimant has not exactly met the condition as intended by the party, submitted that the position of the law is that it must not be exactly the way the party may have intended it to be, provided the ingredients of pre Action notice are contained therein, it meets the requirement. GBADAMOS1 V NIGERIAN RAILWAY CORPORATION (2007) ALL FWLR (PT. 367) 855 CA.

  1. WRITTEN REPLY ON POINT OF LAW TO THE CLAIMANT’S AFFIDAVIT OF WITNESS FILED ON 29TH OF JANUARY 2018 IN OPPOSITION TO OUR NOTICE OF PRELIMINARY OBJECTION filed on 8th May, 2018.

  1. ON THE ISSUE THAT THE PUBLIC OFFICER’S PROTECTION ACT NOT APPLYING TO BAR A RELIEF SOUGHT IN CONNECTION WITH AN ERROR COMMITTED IN A PURELY JUDICIAL CAPACITY-
  2. Learned Counsel submitted that the court cannot be stampeded into delving into the substantive stage of this matter, because to determine at this stage whether the 3rd defendant acted in purely judicial manner or capacity would be tantamount to going into the substantive matter where it would be necessary to lead evidence to substantiate the claims, this definitely is not allowed at this stage having regard to the position of the court in Ahmed V. Dasuki (1998) 1 NWLR pt532 pg. 471 at 78, paras G-H; Orji v. Zaria Industries Ltd (1992) 1 NWLR pt. 216 pg. 124.

 

  1. He contended that the court’s responsibility here is to comply with the provision of section 2 (2) of Public Officer Protection Act and declare this suit as statute barred as no cause of action can arise or be maintainable after the limitation period has elapsed. Sadiq v. Akinkunmi suit No. CA/240/98 ;( 2000)18W.R.N.164 at 171, per Galadima, JCA; F.B.N Plc. v. Associated Motors Co. Ltd (1998) 10 NWLR (Pt. 570) 441 at 480.

  1. ON THE ISSUE THAT THE PUBLIC OFFICER ACT DOES NOT PROTECT A PUBLIC OFFICER UNLESS WHERE THE PUBLIC OFFICER ACTED IN PURSUANCE OR IN EXECUTION OF OR INTENDED EXECUTION OF LAW OR OF ANY PUBLIC DUTY OR AUTHORITY.

  1. Counsel argued that in the instant case, the speaker of the House of Representatives by virtue of Section 89 (1) and (2) of the 1990 Constitution acted within the ambit of the law in pursuance of the public duty response on him which is the power to carry out investigation in sections 88 and 89 of Constitution. Furthermore, that the 3rd defendant is a public servant within the meaning of Section 18 (1) of Interpretation Act, Cap. 123 Laws of the Federation of Nigeria, 2004 and section 318 of the 1999 Constitution and that the act complained of was carried out by the applicant in the discharge of his statutory, duties as a public officer and therefore covered by the public officer protection act.

  1. ON THE ISSUE OF WHETHER THE 3RD DEFENDANT ACTED MALICIOUSLY OR IN BAD FAITH AND THEREFORE PUBLIC OFFICERS PROTECTION ACT NOT APPLYING.

  1. Counsel submitted that the 3rd Defendant does not in any way have any personal or pecuniary relationship with the claimant as to suggest that it acted maliciously or bad faith rather the 3rd defendant acted purely in line with its constitutional power of investigation and oversight as enshrined in Sections 88 and 89 of the 1999 constitution. Unilorin V. Adenifarasin.

 

  1. ON THE ISSUE OF WHEN TIME STARTS TO RUN FOR AN ACTION TO BE STATUTE BARRED

 

  1. Learned Counsel submitted that the position of the law in this respect as stated by the Supreme court in Fadare v. Attorney GENERAL OF Oyo State (1982)4 S.C. 1 at 24-25 that for the purposes of statutory limitation of actions, time begins to run from the moment that the cause of action arises, and there exist a person who can sue and another who can be sued and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed…”

  1. Therefore, that in this instant case, time begin to run from the date the course action arises which is the date the claimant was dismissed from office and served the notice of dismissal precisely on the 9th February, 2006 and the plaintiff brought action two years after which is on the 26th of February, 2008 at the Federal High Court, and subsequently filed before this Honourable court on the 14th of June, 2016. That the effect of this is that the plaintiff has waived his right to institute and action in this matter having exceeded the limitation period. And that where the law prescribes a period for instituting an action has elapsed, proceedings cannot be instituted after that period. Obafemi V. Okoye (1961) 676, Egbe v. Adefarasin (1987) INWLR (p147)1(p.86 para E.G).

 

  1. ON THE ISSUE OF PRE-ACTION NOTICE

 

  1. Counsel contended that pre-action notice was not served by the claimant on the Nigerian legislative institution who is the third defendant in this matter as this is a necessary requirement of the law and a condition precedent for the commencement of any action of this nature. Section 21 of Legislative Houses Power and Privileges Act which requires three(3) months’ notice to be given before any suit is instituted against the parliament, be it the Speaker ,the Senate President, the Clerk and the leadership of the state houses of Assembly. Per Ubaezonu, J.C.A in Lamani v, Ikeja Local Govt. Suit NO. C.A/L/171/90; (1993) 8N.W.LR (Pt.314)758 at 771.

  1. The 2nd defendant had initially adopted his NPO and written address on the 17th November 2018 after the matter had been previously adjourned ton the 18th September 2018 for adoption of written address and the matter was adjourned for the claimant to respond. Within the interim the 3rd defendant filed their NPO and the claimant filed his reaction to both process and all parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgment. Decision.

 

Court’s Decision

 

  1. I have carefully summarized the position of all parties, 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 Judgment and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is firstly the issue raised by both parties

1)      whether the claimants case is statute barred and then the 2nd defendants second issue

2)      Whether the claimant served the requisite pre-action notice before coming to court.

  1. With regard to issue 1. The law is well settled as to what a court is supposed to do when confronted with the question of a suit being caught up by the limitation law such as the Public Officers’ Protection Act. And that is
  2. Determine the Cause of Action and when it occurred
  3. Establish the limitation and in respect of POPA determine whether the defendant is entitled to the protection of the particular Limitation Act
  4. Determine when the suit was initiated and compare the dates whether it exceeds the limitation period
  5. If the interval in question does not exceed the limitation period proceed with the trial
  6. If the interval exceed the limitation period look into whether the matter comes within  a any of the established exceptions
  7. If the matter falls within any of the established exception hold that the matter falls within the exceptions to the limitation Act.
  8. Where the mater does not fall with the known exception declare the matter statute barred and dismiss same.
  10. From the claimant’s original processes filed in the Federal High , as this court in the case of KAJANG vs. NATIONAL AGENCY FOR THE CONTROL OF AIDS (NACA) Unreported NIC/LA/31/2011 delivered in the 27th July 2012 has held that in a transferred case, such as this one, court will take into consideration when the action was first filed and not the date of transfer from the other court the claimants particularly the reliefs sought and cause of action, in the instant case from all his reliefs and his statement of fact, the cause of action his dismissal, all  reliefs and complaints that act of dismissal.

  1. This dismissal was affected by a by a letter dated 2nd February 2005 which he was averred was served on him on the 9th February 2006 with a letter dated 2nd February 2005 and that his salary was has been outstanding since 1st January 2007.
  2. With regard to period claims such as salaries and pensions the position of the law in respect of such claims is that such a claim presupposes entitlement to such salary and denial of payment when and as it fell due and was not pai55 d See LUTH & MB Vs. ADEWOLE [1996] 7 NWLR (Pt. 463) 701.

  1. The claimants cause of action with regard to the dismissal, relies 1, 2, 3, 4, and 5 I find arose on the 2nd February 2005 and the claimants cause of action in respect of the his claim for salaries relief 6, I find arose on the 30th January 2007,

  1. 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.

  1. The issue being whether the defendants are not entitled to the protection of this act.

  1. To whom does the POPA apply or is the Public Officer Protection act applicable to this suit.
  2. 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…

(c) the service of a body whether corporate or unincorporated established under a Federal or State Law.

  1. Section 318(1) of the CFRN 1999 defines “Public service of the Federation to mean service in any capacity in respect of the Government of the Federation and includes service as (c) any member or staff of any commission or authority established for the Federation by this constitution or by an Act of the National Assembly.”

  1. In FGN vs ZEBRA [2002] LPELR 3172 SC. The Supreme Court held that a public officer as stipulated in Section 2A Public Officers Protection Act not only refers to natural persons sued in their personal names but they extent to public bodies, artificial persons, institutions or persons sued by their official names or titles PER MOHAMMED JSC. Also see the cases of   ALHAJI ALIYU IBRAHIM vs. JSC KADUNA & ANOR [1998]14 NWLR (Pt.583) p.1 and SULGRAVE HOLDINGS INC. &19 ORS Vs. FGN & 3ORS [2012]17 NWLR (Pt.1329) p.309 at 338.

  1. From the foregoing I find that the defendants are entitled to the protection afforded by the Public Officers Protection Law.

  1. This suit was instituted on the 26th of February 2008, by simple mathematic calculation the claimant action was brought 2nd February 2005-26th February 2008 is three years and 24 days after the cause of action arose. The clamant had contended that the letter was served on him on the 6th February 2007 even if we were t use this date the matter was instituted two years and 20 days after the cause of action arose.

  1. With regard to the claimant claim for salary the calculation would then be 30th January 2007 – 26 February 2005 which would then be eleven months and 4 days after the cause of action arose.

  1. I shall consider the claimant argument as regards pre action notice in the event that I find that the claimant did infact give a valid pre action notice.

  1. The claimant maintains that he duly gave the 2nd defendant a pre action notice dated 11th October 2007 and signed on the 12th October 2007. By UGHELLI SOUTH LOCAL GOVT COUNCIL v. EDOJAKWA 2018 LPELR CA, A pre action operates to “put the jurisdiction of a Court on hold pending compliance with the pre-condition.   The effect of a pre action notice is that it suspend or freezes the court’s jurisdiction until after the service of the pre action notice on the 2nd defendant. Now by Section 20 (3) and (4) reproduced below.

  1. The claimant is required to give the 2nd defendant pre action notice of one month before proceeding to court. The claimant maintains he served the 2nd defendant the pre action notice on the 12th October 2007. Which by implication means that he is legally free to approach the court after one month which would be the 11th of November 2007. Considering that a pre action pends the court’s jurisdiction until after the notice is served the claimant cause of action would then arise on the 11th November 2007.

  1. Now POPA gives a three month window for the claimant to approach the court means 11th November 2007 + 3 month that the claimant has three months to approach the court before his cause becomes statute barred, time will only begin to run when the claimant has served the notice and one month had lapsed which means 11th November 2007 + 3 month brings us to 11th February 2008.

  1. The claimant instituted this action on the 26th of February 2008, 15 (Fifteen) days after the cause of action lapsed. Having said that, I shall however evaluate the issue of existence and validity of the pre action notice later on in this decision.

  1. The Public Officers Protection act gives a one month mortarium for a claimant to bring an action against the defendant. This suit is caught up with the POPA 2004 in respect of all the reliefs sought I find.

  1. The next thing to do is to determine whether the matter comes within any of the exceptions. The Claimant had argued that the claimants matter was a continuing injury.  In BELLO & ORS. v. NIGERIA CUSTOMS SERVICE BOARD (2015) 53 NLLR (PT. 179) 343 NIC @ 351This court held that the definition of the phrase “continuance of the injury” by case law authorities means continuance of the “act which caused the injury” and not the injury itself. Okafor v. A.G, Anambra State (2001) FWLR (PT. 58) 1127 @ 1146 D-G; CARREY v. BERMONDSEY METROPOLITAN BOUROUGH COUNCIL (1903) 675 P. 447; 20 TLR 2; AMAMIWE v. THE LOCAL SCHOOL BOARD (1971) 2 NMLR 57 @ 58; OBIEFUNA v. OKOYE (1961) ALL NLR 357.

 

  1. For the exception of “continuance of damage or injury” to limitation of action rule to avail an employee, there must be periodicity of payment. For instance, where an allocation which comes periodically, say, monthly (like salary and allowances) is deprived an employee, there is continuing damage or injury for which the Public Officers Protection Act or Law will not apply. HON. RUNYI KANU (JP) & ORS. v. ATTORNEY-GENERAL & COMMISSIONER FOR JSUTICE, CROSS RIVER STATE & ORS. (2013) 32 NLLR (PT. 91) 63 NIC.

  1. The question continuing injury cannot apply to the claimant dismissal as the act of dismissing the claimant occurred only once by the letter of 2nd February 2005. Also, in this case with reference to the stoppage of salary, for this to be considered a continuous injury, would require that the claimant still be in employment. Only then could the stoppage of his salary be considered a continuing injury, as the issue of periodicity of payment cannot apply to the claimant having been dismissed.

  1. The claimant also raised argument that in dismissing the claimant, the defendants were acting in judicial capacity fall into the category of action taken in a judicial capacity, citing ABIODUN Vs. A.G. FEDERATION Supra in this case the issue before the Apex Court were the decision of a Miscellaneous Offences Tribunal which the appellant were unable to lay their hands on and the FHC had held their claim was statute barred, this I find is not in any way similar to the claimant case/ also the reference made by Claimant Council to the case of FRN Vs. Ifegwu supra I find has no  bearing on the instant case as in that case the Supreme court was dealing action of the Failed Banks Tribunal and the Special Appeal Tribunal. The other cases referred to by the claimant were no more relevant that the first two on this point.
  2. The law is that “The law is that generally, a body exercising powers which are of merely advisory, deliberative or investigative nature or character or which do not have legal effect until confirmed by another body or which is involved only in the making of a preliminary decision which is subject to approval by the appointing authority, will not normally be held to be acting in a judicial capacity. See MILITARY GOVERNOR, OYO STATE V. ADEKUNLE (2005) 3 NWLR (912) 294. The mere fact that an administrative panel had invited and heard from the person it was investigating and/or witnesses in respect of the allegation it was to inquire into, would not mean that it had upgraded or turned itself into a court or tribunal. See AKWA IBOM STATE CIVIL SERVICE COMMISSION & ORS v. AKPAN (2013) LPELR-22105(CA).
  3. The argument that the defendants acted in a judicial capacity I find baseless unsupportable and untenable in the circumstances of this case and is hereby discountenanced, the claimant also raised question of good faith malice and acting under the colour of office, more recent authorities tend to favor the approach and direction provided by the case of . RAHAMANIYYA UNITED (NIG.) LTD V. MINISTRY FOR FEDERAL CAPITAL TERRITORY & ORS [2009] 43 WRN 124 CA AT PAGE 146, applying CHIGBU V. TONIMAS (NIG.) LTD [2006] 31 WRN 179; [2006] 9 NWLR (PT. 986) 189 SC AT 210, held that the propriety or otherwise of the act of the defendants is not a relevant consideration for the applicability of the Public Officers Protection Act. The case continued that if an action against a public officer or public institution and organization is statute-barred having not been brought within the prescribed period of three months, there will be no basis for investigating the conduct of the public officer which gave rise to the action. That the conduct of the defendant as to whether he was malicious or not is irrelevant in determining whether the cause of action is statute-barred under section 2 of the Public Officers Protection Act, referring to EGBE V. ADEFARASIN [2002] 14 WRN 57 and AREMO II V. ADEKANYE [2004] 42 WRN 1 SC. And IN JOSHUA MNENGE V. NIGERIAN ARMY UNREPORTED SUIT NO. NICN/IB/22/2012, the ruling of which was delivered on December 18, 2012, this Court dealing with an argument similar to the instant applicant held thus:

  1. It is in the attempt to show that the defendant acted mala fide that the claimant posited that the defendant did not act pursuant to the law. This argument turns the principle over its head as it is the very fact of the claimant complaining that his dismissal was not in accordance with the law that brought him to Court in the first place. If the claimant’s counsel turns round to say that for this reason, the defendant cannot enjoy the benefit of the Public Officers Protection Act 2004, then there is some warped reasoning on his part in that regard.

  1. See also the unreported cases of SUIT NO. NICN/LA/07/2016MRS AGUBUZOR NKECHI Vs. CENTRE FOR BLACK AND AFRICAN ARTS AND CIVILIZATION &6 ORS Delivered December 7, 2016, SUIT NO. NICN/AB/04/2013 DR ADEGOKE E. ADEGBITE Vs. FEDERAL UNIVERSITY OF AGRICULTURE ABEOKUTA &3 ORS Delivered November 18, 2014, SUIT NO. NIC/LA/214/2011 MR. DOSUMU OLOTO Vs. POWER HOLDING COMPANY OF NIGERIA Delivered February 13, 2014 and SUIT NO. NICN/LA/312/2013 MR. IYEDE ONOME FESTUS & 1 ORS Vs. MANAGEMENT BOARD OF DELTA STATE UNIVERSITY TEACHING HOSPITAL& 1 ORS Delivered July 3, 2014
  2. In the instant case I find that the question of the alleged bad acts of the defendant have no bearing in the consideration of the case being caught up by POPA as it is these bad act that brought the claimant to court so why should the same acts afford him a free ride on limitation. The person with a right of action is required to act timeously.

  1. The claimant asked the defendant be bound by the decision my learned brother of the Federal High Court in NICN/ABJ/353/2015 COMMANDANT JAMES BASSEY Vs. COMMANDANT CDIPSB which had earlier made a pronouncement in respect of some issues before the matter was transferred to this court. When the same issues were raised before this court upon presentation of the ruling of the FHC the court refused to reconsider the issue, in the instant Case the issues are being raised for the first time and the FHC ruling is only persuasive being a ruling of concurrent jurisdiction.  It is not binding on this court. See the case of ACTION CONGRESS & ANOR. V. JAMES YAKWEN AYUBA & ORS. (2008) LPELR-3581(CA) where it was held as follows “it is now trite law that the lower court is bound by the decision of the Higher Court and ultimately by the decision of the Supreme Court. Courts or tribunals however of concurrent jurisdiction, such as the tribunal sitting in Plateau State and the one sitting in Nasarawa State their decisions do not bind each other”. See S.285 (2) of the 1999 Constitution; Clement V Iwuanyawu (1989) 3 NWLR (Pt 107) 39 and General Electric Co V Akande (1999) 1 NWLR (Pt. 588) 532.

  1. The claimant took stock with the procedure adopted by the 2nd defendant in presenting his NPO arguing that the rules of this court require that such defence be pleaded. Now the Supreme Court has said in AJAYI V. ADEBIYI & ORS (2012) LPELR-7811(SC) that “It is therefore noteworthy that an application or preliminary objection seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurrer and therefore can be filed and taken even before the defendant files his statement of defence or without the defendant filing a statement of defence. The reason being that the issue of jurisdiction can be raised at anytime.” Per ADEKEYE, J.S.C (P 49, Paras E-G)

  1. In the National Industrial Court of Nigeria Civil Procedure Rules 2017 Order 17 rules (9) –( 11) provide as follows;-

  1. (9) Every motion including Notice of Preliminary Objection shall be accompanied by a Written Address, and an advance copy of same shall be forwarded by the Defendant or Respondent or defendant/respondent’s counsel to the Claimant or any other party in the matter within seven (7) days of filing.
  2. (10) Where a Respondent served with a motion on notice intends to oppose the application, the Respondent shall file a Counter-affidavit (if any) and a Written Address within seven (7) days of the service on the Respondent of such application. An advance copy of the Counter-affidavit and Written Address shall also be forwarded to the Claimant and any other party.
  3. (11) Where a Counter-Affidavit together with a Written Address is served on the Claimant /Applicant, the Claimant/Applicant may file a Further and Better Affidavit to deal with new issues arising from the Respondent’s Counter affidavit and a Written Reply on points of law within seven (7) days of service. An advance copy of same shall be forwarded to the Defendant or Respondent.

  1. In this court, a Notice of Preliminary Objection based on law alone does not require an affidavit, in the case of IWUJI & ORS v. GOVERNOR OF IMO STATE & ORS (2014) LPELR-22824(CA) it was held that”… It must be pointed out here that the Respondents need not file along with the notice of preliminary objection affidavit stating the facts and circumstance of their objection. It is trite that once preliminary objection to the jurisdiction of the court is raised, it is sufficient notice to the other party since no affidavit need be filed by the Objector. In Bello vs. National Bank of Nigeria (1999) 6 NWLR (Pt.246) 206, it was held that there is no mandatory requirement under the Rules of the High Court for a preliminary objection to be accompanied by an affidavit except where the party raising the objection has proceeded by way of Motion on Notice. In Okoi vs. Ibiang (2002) 10 N.W.L.R (Pt 776) 455 A-C, it was also held that an objection must be based on the document already before the Court and no evidence whether oral or documentary shall be allowed. A preliminary objection needs not be supported by an affidavit as long as enough material is placed before the Court on which it can judiciously pronounce on the objection.” Per ABBA AJI, J.C.A. (P. 38, paras. A-G)
  2. The Claimant raised the question of POPA not applying to contract, Now while it has been well established that limitations laws are not intended to apply to contracts FGN Vs ZEBRA ENERGY LTD. [2002] 18 NWLR (Pt. 798) 162 per Mohammed JSC @196-198 paras. F-G.NPA vs CONTRUCTION [1974] 1 All NLR (PT. 11) 463, OSUN STATE GOVERNMENT vs. DALAMI [2002] 9 NWLR (Pt. 1038) 60.

  1. In the case of FORESTRY RESEARCH INSTITUTE OF NIGERIA vs GOLD [2007] 11NWLR (PT. 1044) the Supreme Court held that the Public Officers Protection Act 2004 applies to contracts of employment.

  1. The case JOHN EGBELE vs THE POST MASTER GENREAL [2009] LEPLR 8870 C A is most apposite. BAKARA v. NIGERIAN RAILWAY CORPORATION 2007 17 NWLR (Pt. 1064) 628 NBC v. BANKOLE 1972 NSCC 220 where the Supreme Court made this distinction “where a contract refers to specific contract entered into by parties with distinct terms and conditions, the statutory privilege under Public Officers (Protection) will not avail a public officer where the act or decision complained of is in the performance or execution of a public duty, the protection will avail a public officer or public authority”., ZEBRA ENERGY LTD.200 18 NWLR (Pt.798) 175.

  1. The position of the law is that POPA applies to contract of employment this argument of the Claimant therefore fails.

  1. I find that the Claimant case does not fall within any of the established exception the contention of the Claimant all fail.
  2. The Defendant also raised the issue of non-compliance with the pre action notice to which the Claimant had responded that he had indeed give there requisite notice. To the Claimant he had given sufficient notice in his letter of 11th October 2007. I mist state that I did not see any pre-action notice as part of the originating processes frontloaded in this case; instead what I saw was a letter from the Claimant himself  bearing the date 11th October 2007 and signed “Received” on the 12th October 2007 with a signature under the words ‘Received’ as contended by the Claimant counsel attached the Claimants reply processes to the 2nd Defendants NPO.I am aware that by the case of Amadi v. NNPC [2000] FWLR (Pt. 9) 1527; [2000] 5 WRN 47 the issue of particulars is required to  be directory. However the letter of 11th October has the heading “Re Notice of Dismissal” informing the addressee that he had written several representations to the organization and others, requesting his case investigated and if found not guilty that he be re- instated, and that if the Board and Corp maintain their position he would have not option that to seek redress in Court to enforce his right and claim damages. By ZAMFARA STATE GOVT & ANOR v. UNITY BANK & ANOR (2016) LPELR-41813(CA) the Court of Appeal held that “the pre-action notice is usually a procedural defense open to Government Corporations or Agencies whenever they are sued. The Act usually under which the Corporation is created or established requires prospective Plaintiffs in a potential action against the Corporation to serve the Corporation with a pre-action notice. A pre-action notice is therefore a notice usually in writing given by the prospective Plaintiff to the Government or Statutory Corporation to be sued, informing the latter of the prospective Plaintiff’s intention to commence legal action against the Corporation. See the case of NTIERO v. NPA (Supra) where the Supreme Court per MUHAMMAD, JSC was of the view that a pre-action notice refers to some form of legal notification or information required by law or imparted by operation of law, contained in an enactment, agreement or contract which requires compliance by the person who is under a legal duty to put on notice the person to be notified before the commencement of the legal action against that person.

  1. And in Ntiero v. N.P.A (2008) 10 NWLR (Pt.1094) 129 at 142, paras. A-B (SC)  it was held that “A pre-action notice should be in the form of a letter, usually written by a plaintiff or his solicitor, to the prospective defendant giving him notice of intention to institute legal proceedings against him for specified reliefs.” Per Akintan JSC all in all I find that claimant did in fact give the requisite pre action notice in that the claimant’s process although not filed with the originating processes meets the requirement of a pre action notice. I resolve this issue for the claimant. The 2nd ground of the 2nd Defendants PO fails and is dismissed.

  1. Having noted that the Claimant case is caught up with the POPA and having resolved the effect of the pre action notice earlier. I find on that the that whole, the Preliminary Objection of the 3rd Defendant and the 1st ground of the NPO of the 2nd Defendant have merit and succeed on the grounds that this action is statute-barred. The instant case is accordingly dismissed for want of jurisdiction.

  1. This is the Court’s Judgment and it is hereby entered.

…………………………………….

HON. JUSTICE E. N. AGBAKOBA

PRESIDING JUDGE, ABUJA

admin

Website:

Related Story