IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP: HON. JUSTICE A. A. ADEWEMIMO
DATED: 3RD DECEMBER, 2018 SUIT NO: NICN/AK/24/2018
BETWEEN
OPEYEMI ONIYA CLAIMANT
AND
- THE GOVERNING BOARD,
FEDERAL POLYTECHNIC, ADO EKITI
DEFENDANTS
- THE FEDERAL POLYTECHNIC,
ADO EKITI
REPRESENTATION:-
ADEKUNLE ADELOJU APPEARS FOR THE DEFENDANT.
NO APPEARANCE FOR THE CLAIMANT.
RULING/JUDGEMENT
The Claimant by a Complaint before this Court on the 4th of May, 2018, claims against the Defendants jointly and severally as follows:
- A Declaration that the purported dismissal of the claimant from employment by the defendants vide letter Ref No.: FPA/R.CS/422/43 dated 12th August, 19. is null and void. (sic)
- An Order setting aside letter Ref No.: FPA/R.CS/422/43 dated 12th August 19. Forthwith.
- An Order of court reinstating the claimant back to the employment.
- An Order of perpetual injunction, restraining the defendants from interfering with the claimant’s duties or employment in the Polytechnic on the basis of letter Ref No.: FPA/R.CS/422/43 dated 12th August 19.
- Cost of this action.
The Claimant filed along with the Complaint all the accompanying processes, i.e. his Statement of Facts, Written Statement on Oath, list of witnesses & documents to be relied upon.
The Defendants on the other hand filed a memorandum of conditional appearance dated 15th of May, 2018, while the statement of defence and all other accompanying processes were filed on 16th of August, 2018.
The Defendants earlier filed a notice of preliminary objection dated 3rd July, 2018 based on the following grounds:
- That complaint of the Claimant in the instant suit as contained in the Statement of Claim sic is predicated on a cause of action which arose in 1st April, 1992; that is, about twenty six (26) years ago.
- That action was brought outside the three (3) months period required by Section 2 (a) of the Public Officers (Protection) Act, CAP 41, LFN, 2010
- That the defendants are protected by Section 2 (a) of the Public Officers (Protection) Act, CAP 41, LFN, 2010.
The application was supported by a 4 paragraph affidavit, deposed to by A. A. Adewumi Esq., Male, Senior Staff in the Registry Department of the Federal Polytechnic, Ado Ekiti, Ekiti State. Accompanying the application is a written address in compliance with the rules of this court which was adopted at the hearing. The Defendants formulated one issue for determination in their address to wit;
- Whether or not the Claimant’s action as initiated is statute barred as to vest jurisdiction for its determination on the honourable Court.
The Defendants’ argument as contained in their address is that this suit is statute barred having contravened the provisions of Section 2(a) of the Public Officers (Protection) Act, CAP P41, 2010, LFN, 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, …..
(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…”
It is the submission of counsel that the implication of the above provisions of law is that any action instituted against a public officer filed outside the three months limitation period prescribed by the Act is statute barred and the court lacks the adjudicatory power to entertain same. In support of this position counsel cited
Ibrahim v. Lawal & Ors., (2015) 6SCM 81; Yare v. N.S.W. and I.C. (12 NWLR (Pt 1367) 173.
He went further to argue that this suit is predicated on a contract of employment and the position of the Supreme Court is that Limitation Laws are applicable to contracts of employment.. He cited several cases to buttress this position; Minister, P.M.R v. Expo-Shipping Line (Nig) Ltd (2010) 12 NWLR (Pt. 1208) 261 SC.; UNILAG v. OLUWASANMI, (2017) LPELR-42308 (CA); Mwo Agbonika Sunday v. Chief of Air Staff and Anor. (2016) 1 NWLR (Pt. 1494) 615 at 624; Unijos v. Ikegwuoha (2013) 9 NWLR (Pt. 1360) 478 and Ugwuanyi v. N.I.C.O.N. Insurance Plc (2013) 11 NWLR (Pt. 1366)
The counsel for the Defendants posited that the definition of a “public officer” as envisaged under the Public Officers (Protection) Act [POPA], CAP P41, LFN 2010, applies to the Defendants. He cited the case of Yare v. National Commission for Salaries, Wages, Incomes Commission (Supra) and in FGN v. Zebra Energy (2002) 18 NWLR (Pt. 798) 162 where it was espoused that the word “Public Officer” or “any Person in Public Office” as stipulated by Section 2(a) of POPA not only refers to “natural person or person sued in their personal names but that they extend to public bodies, artificial persons institution or persons sued by their official names or title”. He cited Attorney General of Rivers State v. Attorney General of Bayelsa State &Anor (2012) LPELR 9336 Sc.; Ibrahim v. J.S.C.(1998) 14 NWLR (Pt. 584) 1 @ (pp. 86-87, Paras. H-A); University of Ilorin v. Adeniran (2007) 6 NWLR (Pt. 1031) 498; Akeem v. University of Ibadan (2003) 10 NWLR (Pt. 829) 584; Ibrahim v. J.S.C. (1998) 14 nwlr (Pt. 584) I; Nwaogwugwu v. President FRN (2007) 1 ALL FWLR (Pt. 389) 1327.
The essence of the limitation law as submitted by counsel is to protect public officers from stale claims and proceedings and that in order to decide whether a case is statute barred , the relevant process the court will look at is the originating processes i.e (the complaint and statement of facts) and if the date of filing of the originating processes exceeds the period prescribed by the limitation law, counting from the time the cause of action arose, the action is then said to be statute barred . He cited the following cases of Elabanjo v. Dawodu (2006) 6 – 6 SC 24; Forestry Research Institute of Nigeria v. Gold (2007) 11 NWLR (Pt. 1044) 1 at 18; Egbe v. Adefarasin (1992) 6 NWLR (Pt. 245) 1 at 12; Udor Trading Coy Ltd. V. Abere (2001) 11 NWLR (Pt. 723) 114.
The Defendant’s counsel, submitted that the originating processes filed by the claimant in this suit disclosed the cause of action arose on the 1st April, 1992, about twenty six (26) years ago, when the alleged dismissal of Claimant took effect. He posited further that assuming without conceding to the fact that the Claimant received the said letter dismissing him from the Defendants’ employment in August, 2016 (as averred by the Claimant) this action will still fall outside the limitation period, and is not maintainable.
Counsel argued further that a court can only assume jurisdiction in a suit if the following conditions are fulfilled; the subject matter must be within the jurisdiction of the court, the case must have been initiated by due process of law, and the conditions precedent to the exercise of jurisdiction by the court must have been fulfilled. He cited the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 in support of his position.
Adekunle Aduloju of counsel for the Defendant submitted that Jurisdiction is a very fundamental issue that robs on the competence of a court to hear and decide a matter, and parties cannot cloth the court with jurisdiction to hear and determine a matter, and if by an oversight the court vests itself with jurisdiction and decides a case, an appellate court can set aside the decision reached without jurisdiction. This according to him is the position of the law, as the issue of jurisdiction can be raised at any stage, and even at the appellate stage. He cited in support of his position, Forestry Research Institute of Nig. v. Mr. I. A. Enaifoghe, SC/40/2004.
In conclusion, Counsel submitted that it is a fact that equity aids the vigilant and delay defeats equity, the claimant cannot therefore invoke the equitable powers of court, because of the long delay in initiating this suit. On this, he cited Nigeria Laboratory Corporation & Or. v. Pacific Merchant Bank Ltd. (2012) All FWLR Pt. 640, Pg. 1211, @ 1226. Para.D-E. SC
He urged the court to dismiss the claims of the Claimant in the interest of justice.
The counsel for the Claimant filed an application for leave for extension of time to file his response to the preliminary objection raised by the Defendants, the application is dated 23rd of August, 2018 and filed 11th of October, 2018. He also filed a written address in response to the preliminary objection and prayed for a deeming order, the application was moved and granted on the 25th of October, 2018 it is worthy of note that the claimant did not file a counter affidavit to the Defendant’s affidavit in support of the preliminary objection, he rather relied on his written address which was adopted at the hearing, wherein he adopted a sole issue for determination to wit;
- Whether Section 2(a) of Public Officers Protection Act, applies in this case.
On the above issue, counsel for the Claimant argued that the Claimant’s case is not statute barred as his suit is not affected by section 2(a) of the Public Officers Protection Act . He argued that section 2(a) of the POPA is intended within the limits of the law, to protect a public officer from distraction and unnecessary litigation but never intended to deprive a party of legal capacity to ventilate his grievance on the face of stark injustice. He cited the case of Attorney General, Rivers State v. Attorney General Bayelsa State & Anor (2013) 3 NWLR (Pt. 1340) 123 at 148, para G. counsel posited that the Act does not cover acts amounting to illegality, as time will not run against illegal acts. He cited Egbe v. Adefarasin (1985) 1 NWLR Pt. 3 560, where it was held that an act is illegal where the Public Officer acted “under the cover of the office to do an act contrary to, or not authorized by the law, or not in accord with his public duty”.
He contended that the dismissal of the claimant runs contrary to Section 16 of the Federal Polytechnic Act, which laid down the procedure for the termination of appointment of an employee of the Claimant’s status; arguing that the Public officer responsible for the dismissal of the claimant acted outside the colour of his office or outside his statutory or constitutional duty, as the above cited law is mandatory and must be complied with before the claimant can be legally dismissed, he cited Iderima v. RSCSC (2005) 16 NWLR Pt. 951.
Counsel stated that the Claimant was not only dismissed illegally, he was also denied the right to fair hearing. The allegation that he breached his training bond was proffered without any evidence whatsoever. Assuming without conceding that the claimant was in breach of the training bond, Counsel submitted that it is still incumbent on the defendant to afford him a fair hearing and comply with the disciplinary procedure as provided for under the Polytechnic Act, considering the fact that the Claimant’s employment is statutory.
- Akintunde of counsel for the claimant finally urged the court to dismiss the objection of the Defendant and set the case down for hearing.
The Defendants filed a reply on point of law to the Claimant’s written address on the 23rd of October, 2018.
In the Reply, counsel submitted that the written submission of the Claimant to the preliminary objection is misconceived. He stated that the true position of the law is that where there is a challenge to the competence of a suit, it touches on the jurisdiction of the court itself and must first be considered and determined one way or the other by the court. They submitted that unless and until the issue of jurisdiction is resolved, the court would be acting in vain to proceed to consider the merit or otherwise of the suit as it can only do so if the issue of jurisdiction is resolved. The defendants therefore averred that the contention of the claimant’s counsel is premature, irrelevant and grossly misconceived as they have no place in the preliminary objection. He cited Madukolu v. Nkemdilim [1962] 2 SCNLR 341; Yarai v. Modibbo Adama University of Technology Yola (CA/YL/109/2015) [2016] NGCA 36 (17 May 2016.
The Defendant’s counsel also contested the submission of the claimant’s counsel on the position of the law in the following cases cited by him i.e A.G. Rivers State v. A.G. Bayelsa State & Anor. (2013) 3 NWLR, Pt. 1340, 123 @ 148, Para G.; Egbe v. Adefarasin (1985) NWLR Pt. 3, 560; Iderima v. RSCSC (2005) 6 NWLR Pt. 951; Olatunbosunn v. NISER (1988) 3 NWLR Pt. 80, 25, his contention is that although the cases are linked to the issue of limitation of actions generally, the courts never made such pronouncements of law as postulated by Claimant’s counsel in his written address.
He went further to submit that the suit was initiated by means of an originating process pursuant to the National Industrial Court’s Rules and not pursuant to the Fundamental Rights (Enforcement Procedure) Rules 2009 for the enforcement or securing of the Claimant’s right to fair hearing, and that such a claim for declaration touching on the right to fair hearing initiated under the Rules of this court is not strictu senso an application for the enforcement of Fundamental right and thus not protected by the succinct provision of Order 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009. He cited the case C.P.C v. INEC & Ors. (2011) 18 NWLR (Pt. 1279) 493 where the court stated that whilst an application for the enforcement of the fundamental rights of the citizen pursuant to the provisions of the Fundamental rights (Enforcement Procedure) rules 2009, is not affected by the operation of any statute of limitation, including the Public Officers (Protection) Act 2004, it is not the same for a claim for declarations such as the Appellant’s suit initiated by means of a writ of summons which is not protected by the provision of Order 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 and thus it is affected by any relevant statute of limitation and when commenced outside the prescribed period of limitation, would become statute barred in law. He cited Mallam Nasir Ahmed El-Rufai v. Senate of the National Assembly & Ors (2014) LPER 423115 (CA).
The defendants argued that there are clear exceptions to Section 2(a) of the POPA which had been applied by the court in different cases; but this suit does not fall under any of such exceptions, and cited A.G. Rivers State v. A.G. Bayelsa State &Anor. (2013) 3NWLR, Pt.1340,123.
In all, the argument of the of the Defendants can be summarized as follows;
- Are the Defendants ”Public Officers” within the meaning of “Public Officers” in the contemplation of Section 2(a) of the Public Officers Protection Act LFN 2004?
- Is the claim of the Claimant within or outside any of the exceptions to the operation of Section 2(a) of the Public Officers Protection Act LFN 2004?
He urged the court to dismiss the Claimant’s case.
I have carefully considered all the processes filed by both parties in this application, I have also read the submissions and authorities cited. I have thereafter come up with a sole issue for determination to wit;
Whether or not the court has the requisite jurisdiction to adjudicate over this suit.
It is the argument of the Defendants that the Claimant instituted this action outside the three months statutory period required for instituting an action against a public officer, and that in as much as the Defendants are public officers the action cannot be maintained against them outside the statutory period provided by Section 2(a) of the Public Officers Protection Act Cap P41 LFN 2014.
The Claimant on the other hand contended that the defendant’s objection is misconceived as section 2(A) of Public Officers Protection Act does not cover acts amounting to illegality as time does not run against illegal act, and that in so far as the Claimant was unlawfully dismissed, his action cannot be caught by the Act.
On the argument of counsel for the Claimant that his dismissal contravened his right to fair hearing , It is the position of the law that “Equity aids the vigilant and not the indolent” It is not in doubt that the Act is applicable to contracts of employment, the Claimant having admitted that he became aware of his dismissal in 2016, ought to have instituted an action without any further delay, relying on an alledged illegal dismissal when the statutory prescribed period had lapsed will not avail him. The position of the law remains the same that he who assert must proof, having not initiated his action within time, he is barred from pursuing any legal action against the Defendants in this case in proof of his claim. See AREMU SUNDAY AGBEFAWO V. CUSTOM, IMMIGRATION AND PRISON BOARD 2009, LPELR 3655 CA. wherein Adamu Jauro J.C.A held as follows;
“……….Appellant in this case, instituted the action after 3 months as such the action is statute barred Section 2(a) of the public officers (protection) Act is applicable to contracts of employment. See the Supreme Court decision in Forestry Research Inst. of Nigeria Vs Gold (2007) 11 NWLR (Pt 1044) 1……..”
In Nnaji v. NFA & Anor [2010] LPELR-4629 (CA) the Court of Appeal per Aboki, J.C.A held as follows;
“Jurisdiction is the authority a court has to decide matters before it or take cognizance of matters presented in a formal way for its decision and where a Court exercises jurisdiction which it does not possess, its decision amounts to nothing. See Alamieyeseigha v. Igoniwari (No.2) [2007] 7 NWLR Pt.1034 page 524; Obi v. INEC [2007] 11 NWLR Pt.1046 page 436; ITF v. NRC [2007] 3 NWLR Pt.1020 page 28; Uzoho v. NCP [2007] 10 NWLR Pt 1042 page 320”
In order to determine the jurisdiction of a court, a careful examination of the claimant’s Complaint and statement of Facts is required, this is to ascertain if indeed a court possess the requisite jurisdiction to entertain same. See the case of Corporate Affairs Commission v Governing Council of the Industrial Training Fund and Anor [2015] 1NWLR (Pt 1439) p 114.
The pertinent question that needs an answer is; when did the cause of action arose?, a cursory look at the Complaint and the Statement of Facts before this Court shows that this suit was filed on the 4th of May, 2018. Also looking at paragraph 10 of the Statement of Facts, the claimant averred as follows;
“However in August 2016, the claimant became aware of a letter addressed to him, but sent to a wrong address from the 2nd defendant. The letter purports to have dismissed the claimant from the services of the 2nd defendant…”
It is relevant to note that the Claimant did not file any counter affidavit in opposition to the Defendants’ preliminary objection, the Claimant’s counsel based his argument on the written address filed in opposition to this application. Thus, the deposition of the Defendants are uncontroverted. It is the position of the law that a court can ground its decision on an uncontroverted affidavit, see Sankey JCA in ECO INTERNATIONAL BANK V. NULGE JALINGO LGC & ANOR 2014 LPELR 24171 CA where it was held as follows;
“It is necessary at this point to state the position of the law that is long since trite that affidavit evidence which is neither challenged nor debunked remains good and reliable evidence which ought to be relied on by the court”
The affidavit evidence deposed to by the Defendants therefore represents good evidence in favour of their application, mainly because it stands uncontroverted.
It is the position of law that a letter of dismissal/termination becomes effective from the date the employment is terminated, see FUNLOLA V. C & M EXCHANGE 2016 64 NLLR Pg 553 coram Dele Peters J @ Pg 574 premised on the above, the calculation of the number of days will start from when the cause of action arose to when this suit was filed. This suit was initiated on the 4th of May, 2018 and the cause of action arose in August, 2016, this was admitted by the claimant in his pleadings, making a period of about a year and nine months. This is further attested to by the uncontroverted affidavit of the Defendants. The period clearly falls outside the 3 months prescribed by the Act. I therefore find that the Claimant’s suit is statute barred having been initiated outside the three (3) months statutorily prescribed by the Public Officers’ Protection Act, Cap.P41 LFN 2014. I so hold.
What then is the proper order to make in the circumstance? It is settled law that where a defendant successfully raises a defence that a suit is statute barred and the court uphold and sustain same, the proper order to make is a dismissal. See Yakubu & Anor. V. NITEL & Anor [2005] LPELR-11909 (CA); Eboigbe v. NNPC [1994] 5 NWLR (Pt 347) 649; Etim v. IGP [2001] 11 NWLR (Pt 724) 266 at 285
It is premised on the above, that this suit is hereby dismissed for been statute barred having been filed outside the limitation period provided by Section 2(a) of the Public Officers’ Protection Act, Cap. P41. LFN 2014. I so hold
I make no order as to Cost
Judgment is accordingly entered.
Hon. Justice A.A. Adewemimo
Judge
