IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MINNA JUDICIAL DIVISION
HOLDEN AT MINNA
ON WEDNESDAY 17TH DAY OF OCTOBER 2018
BEFORE HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI
SUIT NO: NICN/MN/01/2018
BETWEEN:
YAHAYA A. DANIYA………………………………………..CLAIMANT
AND
NIGER STATE JUDICIAL SERVICE COMMISSION …………………………………………………………….……..DEFENDANT
R U L I N G /J U D G E M E N T
This action was commenced by a Complaint filed on 19th April, 2018 wherein the Claimant claimed against the Defendant the following:
1. A declaration that the purported termination of the Claimant’s Appointment from the Niger State Judiciary as a permanent and pensionable staff, which is covered by the letter dated 14th January, 2013 is ultra vires, unlawful, null and void having regards to the Niger State Civil Service Rules.
2. A declaration that the purported termination of the Claimant’s Appointment is also unconstitutional, null and void for want of fair hearing and compliance with the laid down procedures for termination of appointment of a Niger State Civil Servant.
3. An Order re-instating the Claimant to the employment/services of the Niger State Judiciary with all rights and privileges attached thereto and without loss of promotion with effect from the date of the purported termination.
4. An Order directing the Defendant to pay the Claimant all salaries, emoluments and entitlements from the date of the purported termination till the date of re-instatement and thence forth.
5. The sum of N300,000.00 only as cost of litigation.
The trial of this case had commenced on 21st June, 2018 with the Claimant testifying as CW1. The CW1 tendered in evidence four (4) documents as Exhibits C1 – C4 respectively. The learned Claimant counsel subsequently prayed for an adjournment to tender another document. It was at that point that the Honourable Court raised an issue of jurisdiction suo motu. The parties were ordered to address the Court on the competency of the Claimant’s case having regards to the provision of Section 2 (a) of the Public Officers Protection Act (POPA).
Learned counsel on both sides filed their written addresses on 10/07/2018 as ordered by the Court.
I had proceeded to carefully consider the entirety of the written and oral submissions canvassed by the respective learned counsel for both parties, to which I shall make reference as I consider needful in the course of this Ruling.
The case of the Claimant, as disclosed in the Statement of Facts is clear. He was a Senior Staff of the Defendant until 14th January, 2013 when his appointment was terminated. The Claimant alleged that his appointment was without recourse to any notice of allegation, query or misconduct either oral or written. He further alleged that he was not invited to any committee or panel to answer to any query and neither was he given notice or salary in lieu of notice. The Claimant also alleged that he approached the Defendant to intervene but that he did not receive any positive response in spite of his request to the Defendant.
Being aggrieved by the actions of the Defendant, the Claimant commenced the present action and sought reliefs which I had earlier stated.
The learned counsel for the Defendant, Ahmed Yusuf Esq., had hinged his arguments principally on the ground that the limitation law, that is the Public Officers (Protection) Act, caught up with the suit, in that the Claimant commenced the action after the time permitted for filing an action against the acts of a public officer complained of had lapsed.
The Defendant’s learned counsel further argued that in the present case, the wrong the Claimant alleged to have been done against him by the Defendant, as captured in his Statement of Facts, related to the purported termination of his appointment, by which he urged the Court for re-instatement and for which reason he claimed for all salaries, emoluments and entitlements from the Defendant.
Citing the case of Aiyelagbegun Vs Local Government Service Commission Ilorin, Kwara State [2005] All FWLR Pt 802 Pg 169, the Defendant’s counsel further argued that, the Claimant’s cause of action as disclosed in his Statement of Facts, arose on 14/01/2013, when the Claimant alleged that his employment was terminated by the Defendant.
The Defendant’s learned counsel further contended that when the Claimant received the letter of termination of his appointment, he approached the Presiding Judge of the Court where he had served as the registrar to demand for the reason for the termination of his appointment. This action was filed on 19/04/2018 which was five years after the Claimant became aware of his termination of his employment. Learned counsel submitted further that the action is statute barred having been instituted outside the three (3) months allowed by the Act that is, from the date of the accrual of the cause of action.
Learned counsel submitted that once a stipulated time for bringing an action has elapsed, the right of action becomes extinguished by effluxion of time and in that instance, the Court lacked jurisdiction to entertain the suit and that the suit is liable to be struck out. He cited the provision of Section 2(a) of the POPA and authorities of Abba Vs JAMB [2005] All FWLR (Pt. 777) 744; Attorney General of Federation Vs Abacha [2011] All FWLR (Pt. 566) 445, Madukolu Vs Nkemdilim ]1962] 2 SCNLR 341
Learned Defendant’s counsel therefore urged the Court to hold that the Claimant’s action is statute-barred and to strike out the same.
In his arguments on the issue of jurisdiction raised suo motu by the Court, the learned counsel for the Claimant, E.N. Jiya Esq., posited that there are exceptions to the applicability of the provisions of the POPL of Niger State which provisions is in pari materia with Section 2(a) POPA.
Learned counsel relied on the authorities of Alh. Jibrin Bala Hassan Vs Dr. Mu’azu Babangida [2010] LPELR SC 170; Lagos City Council Vs Ogunbiyi [1969] 1 All NLR 297 at 299; C.B.N Vs Okojie [2004] 10 NWLR (Pt. 882) 448 at 523; Nwankwere Vs Adewunmi [1966] All NLR 119 at 124; Offoboche Vs Ogoja Local Government [2001} 16 NWLR (Pt 739) 458 all of which decided the point that where the public officer failed to act in good faith or acts in abuse of office or maliciously or without legal justification, such public officer will not be protected by the provisions of POPA.
Learned counsel further submitted that the termination of the Claimant’s appointment by the Defendant was without recourse to the laid down procedure governing the termination of appointment with statutory flavour.
In further support of his propositions, learned counsel relied on the Supreme Court authority of Olufeagba Vs Abdulraheem [2010] 17 WRN 24 and the Civil Service Rules 04308 and 04414 which states the procedural steps to be followed in terminating the appointment of the Claimant.
Learned counsel also relied on the authorities of Kwara State Polytechnic Vs Saliu [2012] 41 WRN 26, Moyosore Vs Governor of Kwara State [2011] LPELR 8813 and Nnonye Vs Anyichie [2005] LPELR 2016, where it was held that in employment with statutory flavour, wherein the procedure for employment and dismissal of employees are clearly spelt, the employment cannot be terminated other than in the way and manner prescribed by the statute and any other manner inconsistent with the statute is null and void.
Learned counsel further submitted that the effect of the foregoing authorities is that where there are alleged illegalities in contract with statutory flavour and same is denied as in the instant case, it is the duty of the Court to resolve the issue by formal trial. In further support of his submission learned counsel further cited the cases of Bamigboye Vs Unilorin [1999] 6SCNJ 295; University of Ilorin Vs Adeniran [2006] LPELR 26 and the decision of Hon Justice B. A. Adejumo of this Honourable Court in Suit No: NICN/ABJ/344/2013 between Effiong Michael Vs Nigeria Army and 2 Ors (Unreported)
Now, it would seem that from the submissions made by both counsel, they are not in doubt that the issue of a Court’s jurisdiction is the bed rock of a case. It is now settled that the issue of jurisdiction is fundamental to the question of the competence of the Court adjudicating. It is an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. This is the reason the issue of jurisdiction takes precedence over all other issues whenever it arises. Iwuji & Ors Vs Governor of Imo State & Ors 2012 LPELR 22824; Dangote Gen. Textile Products & Ors Ltd Vs Hascon Associates Nig Ltd & Anor 2013 LPELR 20665
The simple and narrow question to be determined in the instant case is whether the provision of Section 2 of POPA is applicable to the facts of the instant case; and if so, whether, in the circumstances, the action is statute-barred and liable to be dismissed.
The provision of Section 2 of the Act, in focus in the instant case, has been given abundant interpretation in a long line of decided cases to leave no one in doubt as to its correct application. Learned counsel on contending sides have elaborately cited some of these well know judicial authorities.
It must however be underscored that the essence of a limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Therefore a cause of action is statute-barred if legal proceedings are not commenced in respect of same because the period laid down by the limitation law had lapsed. An action which is not brought within the prescribed period offends the provisions of the law and thus could not give rise to a cause of action.
The yardsticks to determine whether an action is statute-barred are:
The date when the cause of action accrued.
The date of commencement of the suit as indicated in the writ of summons or Complaint (as in the instant case).
Period of time prescribed to bringing an action to be ascertained from the statute in question.
The general position of the law is that time begins to run for the purposes of the limitation law from the date the cause of action accrues. See Ajayi Vs. Adebiyi [2012] 11 NWLR (Pt. 1310) 137; Sulgrave Holdings Inc. Vs. FGN [2012] 17 NWLR (Pt. 1329) 309.
It is also significant to further underscore the point as rightly submitted by the learned Claimant’s counsel that the POPA does not protect every action of the public officer. As such, determining the proper applicability of the Act turns a proper understanding of the peculiar facts and circumstances of each case.
Suffice it to quickly affirm the trite position of law as learned counsel for the Defendant had rightly submitted that in the determination of the subject-matter or cause of action, in a suit; it is the originating process of the Claimant that determines the jurisdiction. See Oloruntoba-Oju & Ors Vs Dopamu & Ors (2008) 7 NWLR Pt 1085 1 at 23; Oladipo Vs NCSB (2009) 12 NWLR Pt. 1156 @ 563; NURTW & Anor Vs RTEAN (2012) LPELR 7840
The relevant facts of the case are as contained in Statement of Facts, particularly paragraphs 7 to 14 thereof, which he averred as follows:-
7. The Claimant avers that to his greatest dismay, on the 14th January 2013, his appointment was abruptly terminated without any recource to any notice of allegation, query or misconduct either oral or written. A copy of the letter of termination of appointment with effect from 10/01/2013 and dated the 14/01/2013 is herein pleaded and shall be relied upon at the trial.
8. The Claimant avers that at the time and after his appointment was terminated, no notice or salary in lieu of notice was given to him neither was he invited to any committee or panel to answer any query or allegation against him.
9. The Claimant further avers that the last period he received his monthly salary was in the month of November 2012, thereafter his salary account was not credited neither did he receive any form of payment as his monthly remuneration. A copy of the Claimant November 2012 pay slip is hereby pleaded and shall be relied upon at the trial, notice to produce is hereby given to the Defendant to produce the original.
10. That consequent upon his termination from Judiciary service, he approached his superiors and the Judge of his the Court in Lapai and demanded to know the reason why his appointment was terminated without any explanation.
11. The Claimant further avers he was promised that the matter will be looked into and resolved.
12. The Claimant avers that after a long period of waiting with no positive response, he approached the Niger State Judicial Service Commission and demanded to know why his appointment was terminated he was again assured that his matter will be investigated and resolved accordingly.
13. The Claimant avers that despite his constant pressure on the Niger State Judicial Service Commission over his matter since 2013, he received no positive response from them neither was he communicated with any confirmed progress on the matter.
14. The Claimant avers that after waiting earnestly for a long period without any positive response, he engaged the legal services of some solicitors to institute the matter in court in order to seek redress.
In Madam Ujueke Enemuo (Chair Person, Umuada-Umuchu) & Anor V Alochukwu Ezeonyeka & Ors (2016) LPELR 40171, the term cause of action was defined by BOLAJI-YUSUFF JCA thus:-
“In dealing with limitation of actions, one of the fundamental questions to answer is: When did the cause of action accrue? This crucial question is also the most difficult, as the answer will depend on the surrounding circumstances of each particular case. But may be a collateral question has to be answered first what is meant by cause of action? In its best question it consists of every fact which it would be necessary for the Plaintiff to prove, if traversed, in order to support his right to judgment…..When these facts have occurred and provided, there is in existence a competent plaintiff and a competent defendant, a cause of action is said to accrued to the plaintiff because he can then prosecute an action effectively. Thus the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action.”
Also in Agbonika & Anor v University of Abuja (2014) All F.W.L.R. {Pt. 715} 335 at page 340, the Apex Court held thus:
“A cause of action arises the moment a wrong is done to the Plaintiff by the Defendant. For the purpose of limitation of time for actions, time begins to run from the moment the cause of action has arisen, that is when the facts that are material to be proved to entitle the plaintiff to success have happened.”
From the facts as gleaned above, the question of when the cause of action arose becomes obvious, that is, from 14/01/2013 when the Claimant received his letter of termination of his appointment and/ or when he became aware that his employment was terminated. He averred in paragraphs 10 – 12 that consequent upon his termination, he approached his superiors in office and thereafter the Niger State Judicial Service Commission to demand for the reason for the termination of his appointment. As aptly contended by the Defendant, I find and hold that the cause of action of the Claimant arose and accrued to him on 14/01/2013.
The learned counsel to the Claimant had made heavy weather relying on the cases of Moyosore Vs The Governor of Kwara State (supra) and Nnonye Vs Anyichie & Ors (supra) that POPA is designed and enacted to protect a public officer who acts in good faith and does not apply where issues of patent illegalities are raised against the protection of public officers.
The Claimant had alleged that the Defendant wrongfully, illegally, in reckless impunity and in violation of the law terminated his appointment.
Section 2(a) of the POPA in view provides as follows:
“2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance to 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 provision should have effect:
The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within (3) three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within (3) months next after the ceasing thereof.…”
Now, to resolve the question of whether the instant suit instituted by the Claimant against the Defendant is statute barred, regard being had to the provisions of Section 2(a) of the POPA, the issue of who is a public officer and whether his act was done in pursuance of execution of any law, public duty or authority, must be resolved before the limitation period will apply.
In the instant case, there does not seem to be any disputes as to the fact that the Defendant involved in this suit are public officers, the enquiry then has to start at the next level that is, whether the act had been done in pursuance of a public duty or authority.
On the question therefore, of when the Public Officer’s act would be said to have been done in pursuance of the execution of any law, public duty or authority, it may well be necessary to go over a few popularly decided cases on the subject.
In the case of Ekeogu Vs Aliri (1991) 3 NWLR (PT.179) 258, the Apex Court held the view that the Act is designed to protect a public officer against any action, prosecution or other proceeding; and for any act done in pursuance of or execution of any law, public duty, or authority; or for any alleged neglect or default in the execution of any law, duty or authority.
In the case of Obiefuna Vs. Okoye (1965) ALL NLR 357, the Plaintiff was injured while driving his motor bike, which was knocked down by the defendant who was in turn driving a police truck. He commenced the proceedings after three months of the accident, because he had been in hospital for treatment all the time. The Court held that his claim must fail as one that is statute barred.
The single thread which seems to have linked majority of the cases decided in relation to the Protection accorded the Public Officer under the provision of Section 2 of the Public Officer’s Protection Act is that the express letters of the statute had to be adhered to despite the yearning expectation of justice by the aggrieved.
Perhaps, the proper way to see the problems usually posed under the Act is that the limitation period of three months within, which actions may be brought is the crux of the matter and for which the Courts would not compromise.
In the relatively more recent decision of the Courts on the subject, the position has not changed. See the case of Sulgrave Holdings Inc & Ors Vs FGN & Ors (supra) where the Supreme Court per GALADIMA, JSC had this to say;
“The Public Officers Protection Act is a statute of limitation and the import of Section 2(a) thereof, is that where any action, prosecution, or proceeding is commenced against any person for any act done in pursuance or execution of any law or of any default in the execution of any law, duty or authority, the action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months of the act, neglect, or default complained or in the case of continuing damage or injury within three months next after the ceasing thereof. What this means is that Public Officers Protection Act removes the right of action, the right of enforcement act and the right to judicial relief in a plaint. This leaves Respondent with a bare and empty or hollow cause of action which he cannot enforce because the alleged cause of action is statute-barred and cannot be maintained. SEE FADARE Vs ATTORNEY GENERAL OF OYO STATE (1982) 4 SC 1; OBIEFUNA Vs OKOYE (1964) 1 ALL NLR 96; EGBE Vs ADEFARASIN (NO. 1) (1985) 1 NWLR Pt. 3 Pg 549.”
The learned Defendant counsel had submitted that the Public Officers Protection Act ought to avail the Defendant, the Claimant’s suit having been filed or brought to Court several months after the statutory three (3) months provided by Section 2(a) of the Act.
I agree with the submission of the learned Defendant’s counsel that the only way the validity or illegality of the act of a public officer would come up for consideration is where an action was filed within the prescribed three (3) months period, anything short of that is bound to fail. See the case of EGBE Vs ADEFARASIN (1985) 5 SC 50, where the Supreme Court held as follows:
“It is on the facts clear that Appellant has no cause of action against 2nd Respondent having not brought the action within the prescribed period of three months from the accrual of the cause of action. Again where the Defendant has raised an unanswered plea of protection under the Public Officers Protection Law on the uncontested facts: as 2nd Respondent has done in this case, there is absolutely no basis for prying into the conduct of such a Defendant which gave rise to the action. The Court of Appeal need not have gone into the question of whether malice was relevant consideration in determining the liability of the 2nd Respondent.”
Once again in the case of EGBE Vs ALHAJI (1989) 1 NWLR (PT. 128) 546 AT 584, the Supreme Court per NNAMANI, JSC (as he then was) was rather straight forward on the issue when His Lordship clearly puts it across thus:
”It does appeal to me that the words used in this legislation are plain and ought to be given their ordinary meaning. It is indeed the first rule of interpretation of statues that statutes are to be construed in their ordinary and natural meaning of the words……. It is also a rule of interpretation to assume that, the legislature means what they have actually expressed…. there is no bad faith or good faith contained therein expressly. What seems to standout so vividly are the words, “shall not lie unless commenced within three months” it seems to me that this is more a provision of limitation and is only of defence in the sense that a person sued after three months can rely on it to have the suit dismissed. In my view, the mandatory provision shall not lie indicates that the action cannot be maintained or cannot take off unless brought within three months. In my view, it is only when such action can be maintained, i.e. where there is a cause of action that the question of whether the action complained of was done in the execution of a public duty can be canvassed. To give an interpretation which allows examination of whether the action complained of was done in the execution of a public duty with reference to whether would mean that a public officer can even be sued several years after his retirement for an action which he carried out in the execution of his public duty. That to my mind would completely destroy the main protection which the statue gives a public officer.”
This principle was adopted by the Court of Appeal in the case of Nnaji & Ors Vs Iwueke 2018 LPELR 44043, where it held the view that the words “shall not lie” is a mandatory provision which indicates that the action cannot be maintained or cannot take off unless brought within three months.
It is my view that by the provisions of the Public Officer Protection Act, what a Court is obliged to decide when the protection is raised is whether the action is maintainable and not whether the Defendant is liable, it is not proper for the Court at that stage to conclude or infer from the pleadings that the protection afforded the Defendant by the Law has been vitiated by malice or bad faith.
In my view, it is only when such action can be maintained, i.e. where there is a cause of action that the question of whether the action complained of was done in the execution of a public duty can be canvassed.
Arising from the foregoing therefore, I cannot help but agree entirely with learned Defendant’s counsel on the fact that the element of bad faith, malice, ill motive, illegality, deliberate exercise of power without authority and such like conduct raised against the Defendant can only be raised if the suit is filed within the three (3) months period. Where the cause of action is already statute barred, it would be needless waste of time under the scheme of things. And I so hold.
One of the principles of the statutes of limitation is that a person who sleeps on his right should not be assisted by the Courts in an action for recovery of his property. A person who is aware of his rights but allows them to go stale should not be allowed to revive the said stale action to the detriment of an adversary. It is similar to the equitable principle that equity aids the vigilant and not the indolent and it prevents a party from acting unconscionably See Nwadiaro V Shell Petroleum Development Company Ltd (1995) NWLR Pt 150 322; Shell Petroleum Development Company of Nigeria Ltd V Amadi (2010) 13 NWLR Pt 1210 32.
The philosophy behind the Limitation Laws was stated by Tobi, JCA (as he then was) in Merchantile Bank (Nig) Ltd V Feteco (1998) 3 NWLR (Pt 540) 143 at 156-157 thus:
“A statute of limitation is designed to stop or avoid situations where a plaintiff can commence an action anytime he feels like doing so, even when human memory would have normally faded and therefore failed. Putting it in another language, by the statute of limitation, a plaintiff has not the freedom of the air to sleep or slumber and wake up at his own time to commence an action against a defendant. The different statutes of limitation which are essentially founded on the principles of equity and fair play will not avail such a sleeping or slumbering plaintiff….”
I therefore hold the view, that the right of the Claimant to challenge the action of the Defendant became extinguished the moment he neglected to challenge the said action of the Defendant within three (3) months as stipulated by law.
In the final analysis, my decision is that the filing of the Complaint five (5) years after the cessation of the act complained of clearly offends Section 2 (a) of the Public Officers Act. I find in the result that this Court lacks jurisdiction to entertain this suit. The same shall be and is accordingly dismissed.
I make no order as to costs.
SINMISOLA O. ADENIYI
(Presiding Judge)
17/10/2018
Legal representation:
E.N. Jiya Esq. for Claimant
Ahmed Yusuf Esq. for Defendant
