IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
ON THURSDAY 13TH DAY OF JUNE, 2019
BEFORE HIS LORDSHIP: HON. JUSTICE S. O. ADENIYI
SUIT NO: NICN/KD/29/2018
BETWEEN:
SGT GODWIN OBONGA CLAIMANT
AND
- THE NIGERIA POLICE FORCE
- THE INSPECTOR GENERAL OF POLICE
- THE POLICE SERVICE COMMISSION DEFENDANTS
- THE COMMISSIONER OF POLICE,
KADUNA STATE
JUDGMENT
The Claimant is a retired Police Officer. He was enlisted in the Nigeria Police Force as a Constable in January 1975 and was dismissed on 06/03/1990 for the offence of bribery. From facts garnered from the originating processes, after his dismissal by the Defendants, the Claimant filed an action at the Kaduna State High Court to challenge his dismissal. On 28/07/1994, the Court entered judgement in his favour and his dismissal was nullified. The Defendants were ordered to reinstate the Claimant and pay his salaries, allowances and other emoluments from the date of his dismissal. The Claimant further stated that he was subsequently reinstated with effect from 06/03/1990, the date of his dismissal. The Claimant further contended that although the Defendants compiled with the Court’s order by reinstating him, the Defendants failed to promote him to the rank of Deputy Superintendent of Police (DSP). The Claimant also stated that he wrote several letters to the Defendants by which he requested for his promotion to the rank of DSP, being the rank his colleagues attained at retirement but the Defendants refused to grant his request. The Claimant further contended that he instructed his solicitors to write a reminder to the Defendants about his request. Attached to the Affidavit in support of the Originating Summons are the certified true copy of the judgement delivered by the Kaduna State High Court in Suit No: KDH/KAD/46M/1994 as Exhibit A; the Claimant’s letters of reinstatement dated 21/08/2002 and 02/06/2017 as Exhibit B and Exhibit C; the copies of his letters requesting for promotion dated 30/10/2017 and 15/01/2018 as Exhibit D and Exhibit E and the letter of reminder written by Yusuf Hassan Esq., of Auta Maisamari & Co as Exhibit F respectively.
- Being aggrieved by the refusal of the Defendants to grant his request for promotion, the Claimant instituted the present action by anOriginating Summonson 16/08/2018, whereby he prayed the Court for the determination of the questions set out as follows:
- WHETHER in view of the valid and subsisting judgment of the Kaduna State High Court of Justice in Suit No: KDH/KAD/46M/1994 BETWEEN: GODWIN OBONGA VS THE COMMISSIONER OF POLICE, KADUNA STATE & 2 OTHERS by which the said Court made Orders setting aside the purported dismissal of the Claimant from the 1st Defendant and directing his re-instatement into the Nigeria Police Force, ordered payment of all his salaries, allowances and promotions, the Defendants have any option to decide which aspect of the judgment to obey and which not to obey, especially as regards the Claimant’s promotions.
- WHETHER in view of the valid and subsisting judgment of the Kaduna State High Court of Justice in Suit No. KDH/KAD/46M/1994 BETWEEN: GODWIN OBONGA VS THE COMMISSIONER OF POLICE, KADUNA STATE & 2 OTHERS by which the said Kaduna State High Court made Orders setting aside the purported dismissal of the Claimant from the Nigeria Police Force, and ordered payment of all his salaries, allowances and promotions, inter alia, it does not amount to a breach of the valid and subsisting orders of that Court for the Defendants to have only ordered the re-instatement of the Claimant to the Nigeria Police Force without also promoting him appropriately to the rank of Deputy Superintendent of Police (DSP) before his retirement in the year 2010.
- WHETHER in view of the valid and subsisting Orders of the
Kaduna State High Court of Justice in Suit No KDH/KAD/46M/1994 BETWEEN: GODWIN OBONGA VS THE COMMISSIONER OF POLICE, KADUNA STATE & 2 OTHERS, the Defendants cannot be compelled to promote the Claimant to the appropriate rank of Deputy Superintendent of Police (DSP) as at the time of his retirement on 1st February 2010 and payment of his salaries, allowances and retirement benefits on such rank.
- Upon the determination of the questions set out in the foregoing, the Claimant thereby claimed against the Defendants the reliefs set out as follows:
- A DECLARATION that in view of the valid and subsisting judgment of the Kaduna State High Court of Justice in Suit No. KDH/KAD/46M/1994 BETWEEN: GODWIN OBONGA VS THE COMMISSIONER OF POLICE, KADUNA STATE & 2 OTHERS by which the said Court made Orders setting aside the purported dismissal of the Claimant from the 1st Defendant and directing his re-instatement into the Nigeria Police Force, ordered payment of all his salaries, allowances and promotions, the Defendants do not have any option to decide which aspect of the judgment to obey and which not to obey, especially as regards the Claimant’s promotions.
- A DECLARATION that in view of the valid and subsisting Orders of the Kaduna State High Court of Justice Suit No. KDH/KAD/46M/1994 BETWEEN: GODWIN OBONGA VS THE COMMISSIONER OF POLICE, KADUNA STATE & 2 OTHERS by which the said Kaduna State High Court made Orders setting aside the purported dismissal of the Claimant from the Nigeria Police Force, and ordered payment of all his salaries, allowances and promotions inter alia, it does amount to a breach of the valid and subsisting orders of that Court for the Defendants to have only ordered the re-instatement of the Claimant to the Nigeria Police Force without also promoting him appropriately to the rank of Deputy Superintendent of Police (DSP) before his retirement in the year 2010?
- A DECLARATION that in view of the valid and subsisting Orders of the Kaduna State High Court of Justice Suit No. KDH/KAD/46M/1994 BETWEEN: GODWIN OBONGA VS THE COMMISSIONER OF POLICE, KADUNA STATE & 2 OTHERS, the Defendants can be compelled to promote the Claimant to the appropriate rank of Deputy Superintendent of Police (DSP) as at the time of his retirement on 1st February 2010 and payment of his salaries, allowances and retirement benefits on such rank.
- The Defendants opposed the Originating Summons by filing aJoint Counter – Affidaviton 16/01/2019, whereby they denied the entirety of the Claimant’s claim.
The Claimant thereafter filed a Reply on Points of Law on 15/02/2019.
The Defendants also filed a Notice of Preliminary Objection on 16/01/2019 to the present action by which they sought an order to dismiss the suit on the ground that the same is statute barred.
The Claimant did not file a Counter – Affidavit to the objection to oppose the preliminary objection but rather prayed the Court to exercise its discretion in the determination of the preliminary objection.
- The learned counsel for the Defendants,DSP M.A. Omo-Osagie Esq., had hinged his arguments principally on the ground that the limitation laws that is,the Public Officers Protection Act Cap P41 Laws of Federation of Nigeria 2004 and Limitation Law of Kaduna State Cap 89 Laws of Kaduna State 1990, caught up with the suit, in that the Claimant commenced the action after the time permitted for filing such action had lapsed. The Defendants’ learned counsel further argued that in the present case, the wrong the Claimant alleged to have been done against him by the Defendants, as captured in his Affidavit in Support of the Originating Summons, related to the judgement delivered in Suit No: KDH/KAD/46M/1994, by which he raised questions for the determination of the issues and sought for declaratory reliefs.
Learned counsel restated the well established guiding principles in determining the period of limitation in an action bound by limitation laws and relied on a host of authorities, including Egbe Vs Adefarasin [1987] 1 NWLR (Pt. 47) 1; Alhaji Vs Egbe [1986] 1 NWLR (Pt. 16) 623.
- In contending that the instant action is caught by the limitation law learned Defendants’ counsel relied on the provisions ofSection 16 (1) of the Limitation Laws, Laws of Kaduna State (supra) and Section 2 Public Officer’s Protection Law (supra). Learned counsel for the Defendants further referred toparagraphs 10, 11, and 12 of the Affidavit filed to support the Originating Summons and submitted that the grouse of the Claimant against the Defendants is that the Defendants partially complied with the judgement in Suit No: KDH/KAD/46M/1994 by reinstating the Claimant but without the commensurate promotion to the rank of DSP.
Learned Defendants’ counsel submitted that the issue limitation of action is a jurisdictional issue. Citing the case of Madukolu Vs Nkemdili [1962] 2SCNLR 342; Yusufu Vs Cooperative Bank Ltd [1994] 7NWLR (Pt.359) 676, the learned counsel further submitted that, to ascertain whether an action is statute barred inquiries must be made by the Court to know when the cause of action accrued, the date the case was instituted and ascertain from the Statute the period of time prescribed to institute the action.
Learned Defendants’ counsel further submitted that the Claimant’s cause of action as disclosed in his Affidavit in Support, arose on 28/07/1994 when the judgement of the Kaduna State High Court was delivered and that this action was instituted on 16/08/2018 that is, over twenty – four (24) years after the cause of action accrued. Learned counsel submitted also that the action is statute barred having been instituted outside the ten (10) years allowed by the Law that is, from the date on which the judgement becomes enforceable.
Learned counsel also 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. In further support of his propositions, learned counsel cited the authority of Thomas Vs Olufosoye [1986] 1NWLR (Pt.669) 1;
- It is now settled that the issue of jurisdiction is fundamental to the question of the competence of the Court adjudicating. This is the reason the issue of jurisdiction takes precedence over all other issues whenever it arises as in the instant case. It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the determination of the substantive matter. SeeIwuji & 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 provisions ofSection 16(1) of the Statute of Limitation Law, Kaduna State (supra)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. In considering the issue at hand, it must be borne in mind that it is the law that confers jurisdiction on a Court.
Now, the settled general principle of law, as correctly articulated by the learned counsel for the Defendants, is that where the law provides for bringing an action within a prescribed period in respect of a cause of action accruing to the Claimant, proceedings shall not be brought after the time provided by the statute. An action brought outside the prescribed period is contrary to the provisions of the law and does not give rise to a cause of action. See the locus classicus authority of Obiefuna Vs Okoye [1961] 1 All NLR 357. See also Atunrase Vs Sunmola [1985] 1 NWLR (Pt. 1) 105; NPA Vs Lotus Plastics Limited (supra) 158; Sulgrave Holdings Inc. Vs FGN [2012] 17 NWLR (Pt. 1329) 309.
In the English authority of Battley Vs Faulkner [106] ER 668 @ 670, Abbott, CJ, underscored the jurisprudence behind the concept of statute of limitation when he held as follows:
“The statute of limitation was intended for the relief of the defendants and to prevent persons from being harassed at a distant period of time after the committing of the injury complained of.”
The concept of statute of limitation is further expatiated by the Supreme Court in Ajayi Vs Adebiyi [2012] 11 NWLR (Pt. 1310) 137, where it was held as follows:
“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 cannot be 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 shall not give rise to a cause of action. The yardsticks to determine whether an action is statute-barred are:
(a) The date when the cause of action accrued.
(b) The date of commencement of the suit as indicated in the writ of summons.
(c) Period of time prescribed to bringing an action to be ascertained from the statute in question. Time begins to run for the purposes of the limitation law from the date the cause of action accrues.”
- Suffice it to quickly affirm the trite position of law as learned counsel for the Defendants 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. SeeOloruntoba-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.
Going further, the settled position is that when a Defendant raises a defence that the Claimant’s action is statute barred and the defence is sustained by the trial Court, the proper order for the trial Court to make is an order of dismissal of the Claimant’s action and not merely striking it out. This proposition was succinctly reasoned by Aniagolu, JSC (of blessed memory) when he posited in Lasisi Vs A. G. Oyo State [1982] 4 SC 56, as follows:
“….What is there to try when the statute has provided that the period allowed for bringing an action in which those facts which have been in issue has expired? Absolutely nothing.”
See also Egbe Vs. Adefarasin (supra) 1; Eboigbe Vs. NNPC [1994] 5 NWLR (Pt. 347) 647.
It is therefore settled that once an action is challenged on the grounds of limitation of time to commence the same, as in the instant case, and it is established, this bars the Claimant’s remedy and extinguishes his right of action; and then the Court will be compelled to wash off its hands from the case and decline jurisdiction to entertain the same. This in effect implies that there is absolutely no basis for prying into the substance of the facts and circumstances that gave rise to the action.
- Having established the well known applicable principles, the first question that arises in the mind of the Court is whether the present suit is subject to the limitation clause prescribed by the provision ofSection 16 (1)Limitation Law (supra)
I take liberty to reproduce Sections 16 (1)
Section 16 (1):
“Action shall not be brought upon any judgement or in the interest of any judgement debt after the expiration of ten years from the date on which the judgement becomes enforceable or interest becomes due, as the case may be.” (Underlining mine for emphasis)
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.
On the meaning of the term ‘cause of action’, the Apex Court held in Agbonika & Anor Vs University of Abuja [2014] All F.W.L.R. [Pt. 715] 335 at page 340, held that:
“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.”
- A careful reading of the Originating Summons, the questions raised and the reliefs claimed, will lead to the inevitable conclusion, that this suit was instituted by the Claimant to get the Court to interpret the judgment delivered earlier, inSuit No: KDH/KAD/46M/1994, with the aim of getting the Court to compel the Defendants to promote him. This is clearly seen by the reliefs sought.
The Claimant’s contention is that the Defendants failed to promote him in compliance with the order of the State High Court after he was reinstated. The judgment of the State High Court attached as Exhibit A to the Affidavit in support was delivered on 28/07/1994.
- The pertinent question to ask is whether this Honourable Court has jurisdiction to entertain the reliefs of the Claimant? In my view, the answer is in the negative.
By the provision of the Limitation Law Kaduna State, the action of the Claimant being an action to interpret the judgement and to which the Claimant further sought declaratory reliefs ought to have been commenced against the Defendants not later than ten (10) years from the accrual of the cause of action. But in his case, the Claimant filed the suit on 16/08/2018 which is a period of over 24 years from when his cause of action arose.
I cannot help but agree entirely with learned Defendants’ counsel on the fact that the action against the Defendants can only be properly instituted if the suit was filed within the ten (10) years period. Where the case 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 Statute 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 claims. 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. SeeNwadiaro 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
- In the final analysis, my decision is that the filing of the Originating Summons, twenty -four (24) years after the act complained of clearly offends Section 16 (1) of the Limitation Law, Kaduna State.
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)
13/06/2019
Legal representation:
Auta Maisamari Esq. for Claimant
DSP M.A. Omo – Osagie Esq. for Defendants
