IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. N. AGBAKOBA
DATED 31ST MARCH 2017 SUIT NO. NICN/ABJ/227/2016
BETWEEN:
ABBA OBE GODWIN………………………………………………………. CLAIMANT
AND:
- NIGERIAN COLLEGE OF AVIATION TECHNOLOGY, ZARIA
- THE HONOURABLE MINISTER FEDERAL MINISTRY DEFENDANTS
OF TRANSPORTATION
- THE HONOURABLE MINISTER OF STATE FOR AVIATION
REPRESENTATION:
- A. AGBOholding brief ofS. PETERS for the claimant.
SEUN ORIOWO holding brief S.S. NEEMAN
J U D G E M E N T
The claimant, by a General Form of Complaint filed on 21st June, 2016 and dated 17th June, 2016, with the accompanying frontloaded documents, approached the Court for the following reliefs:
- A DECLARATION that the statutory retirement from service of the claimant by the lst Defendant is in violation of the Retirement Age of Staff of Polytechnics and Colleges of Education (Harmonization) Act 2012;
- A DECLARATION that the statutory retirement from service of the claimant by the 1st Defendant is wrongful, illegal, null, void and of no effect;
- AN ORDER reinstating the claimant to his appointment and position as Chief Sim Engineer in the 1st Defendants employment;
- AN ORDER directing the Defendants to pay to the claimant all salaries and allowances (with increases) that would have accrued to him from 23/09/2015 to the date of his reinstatement;
- AN ORDER of perpetual injunction restraining the Defendants either by themselves, their servants, privies, assigns, agents, howsoever described from ejecting the claimant or in any manner tampering with his quiet enjoyment of the official accommodation occupied by the claimant and his family without due process of Law.
- Cost of this action.
Claimant’s Case
Claimant was employed as an Electronic Engineer II, GL 10 by the 1st defendant on 1st March, 1982. In 2012, a law was enacted known as the retirement age of Polytechnics and Colleges of Education (Harmonization Act, 2012) fixed the retirement age of Staff of Polytechnics at 65 years irrespective of years of service.
He received a Memo captioned “Implementation of Tenure Policy via Establishment Circular HCSF/061/S/III/65 of August, 2009 notifying him to proceed on leave pending clarification on the above subject matter from the Office of the Civil Service of the Federation. On 23rd September, 2015, he received a letter captioned “Notice of Statutory Retirement from Service”.
The Defendants filed a NOTICE OF PRELIMINARY OBJECTION on 8th February, 2017, praying the Court for AN ORDER dismissing the Claimant’s suit NO. NICN/ABJ/CV/227/2016 for being statute barred.
GROUNDS FOR THE APPLICATION
(a) The suit was commenced after more than three months from the time when the cause of action arose.
(b) The cause action arose from the Claimant’s retirement on the 23rd September, 2015. This suit was commenced on the 2lst June, 2016.
The defendants also filed a WRITTEN ADDRESS IN SUPPORT OF PRELIMINARY OBJECTION with the sole ISSUE
Whether this suit can subsist before this Honourable court in view of the fact that the subject matter (retirement from the service due to tenure policy) which forms the basis of this suit arose on the 23rd September, 2015 and this suit was instituted on the 21’ June2016.
Learned Counsel to the defendant Seun Omoriowo Esq contended that the Defendants are public officers within the purview of Section 2 of the Public Officers Protection Act Cap P 411.F. N. 2004; IBRAHIM VS. J. S. C., KADUNA STATE (1998) 14 NWLR (PT. 584) 1 at 35-36, PER IGIEL .1. S. C. He submitted that for the purpose of instituting an action in court, time begins to run from the date of the accrual of the cause of action. Okenwa. V. Military Gov. Imo State (1997)4 NWLR (pt. 392) 655.
Furthermore, that it is trite that in determining the period of limitation, one has to look at the time the cause of action arose and compare it with when the Originating Process was filed. If the time of the originating process is beyond the period allowed by the limitation law, then the action is statute barred; Okenwa. V. Military Gov. Imo State (supra). Therefore, that by virtue of the Public Officers (Protection) Act, the Claimant’s claim/suit is statute barred. AGI VS. ENO (2010)5 NWLR (PT 1188) 626 AT P 642 paragraphs D-E; C.C.C.T. C S. LTD VS. EKPO (2008) 6 NWLR) (PT 1083) 362 at P 398 paragraphs D-E, per Niki Tobi, JSC.
On the effect of an action being statute barred, counsel relied on the following cases: I.T.F VS. N.R.C. (2007) 3 NWLR (Pt. 1020) 28 AT P 62 paragraphs B-C, per Onnoghen JCA (as he then was); SPDC LTD. VS. FARAH (1995) 3 NWLR (PT 382) 148 EBOIGBE VS. NMPC (1994) 5 NWLR (PT 347) 649 OBIEFUNA VS. OKOYE (1961) 1 SCNLR 144, SAUDA VS. KUKAWA LG (1991) 2 NWLR (PT 174) 379. PN UDOH TRADING CO LTD VS. ABERE (2001)11 NWLR (PT 723) 114.
The Claimant filed a 19 paragraph COUNTER AFFIDAVIT IN OPPOSITION TO DEFENDANTS’ NOTICE OF PRELIMINARY OBJECTION dated 15th February, 2017, deposed to by claimant. And a written addressed tagged “WRITTEN ADDRESS IN OPPOSITION TO DEFENDANTS NOTICE OF PRELIMINARY OBJECTION”. Wherein the claimant raised the following ISSUES
- Can a Circular or Policy circumvent, obviate, override or cancel the provisions of an Act of the National Assembly?
- If the answer to issue 1 above is NO, from where did the 1st Defendant derive the power to STATUTORILY RETIRE the Claimant from its service?
- In the circumstance, does the protection afforded a Public Officer by the Public Officers Protection Act, apply in this case?
ON ISSUE 1
Can a Circular or Policy circumvent, obviate, override or cancel the provisions of an Act of the National Assembly?
Learned Claimant’s Counsel N. A. Agbo Esq. relying on the Oxford Advanced Learner’s Dictionary 5th Edition (3 impression 1999) defined a Circular as, “a printed letter, notice or advertisement sent to a large number of people.”
While an Act of the National Assembly is “a Law that people must obey” — Macmillan English Dictionary for Advanced Learners, International Student Edition, 2006.
He submitted that it is trite that a Circular does not have the force of a Law. MAIDERIBE vs. F.R.N. (2014)5 NWLR pt.1399, 68. Claimant’s Counsel contended that the tenure policy cannot circumvent, obviate, override or cancel the clear provisions (especially Section 2) of the RETIREMENT AGE OF STAFF OF POLYTECHNICS AND COLLEGES OF EDUCATION (HARMONISATION) ACT 2012.
ON ISSUE 2
If the answer to issue 1 above is NO, from where did the 1st Defendant derive the power to STATUTORILY RETIRE the Claimant from its service?
Claimant’s Counsel submitted that Section 2 of the Act, has exempted ALL STAFF of the 1st Defendant from the dictates of every Law or rule concerning retirement, applicable in the Public Service. He cited the side note to Section 2 which reads EXEMPTION FROM PUBLIC SERVICE RULES. F.R.N. vs. IBORI (2014) All FWLR, pt.735, 272 at 310 para E-F; UWAIFO vs. A.G. BENDEL STATE (1982) NSCC VOL.13, 221. He maintained that having argued convincingly that the tenure policy does not apply to Staff of the 1st Defendant, it suffices to say that the purported NOTICE OF STATUTORY RETIREMENT FROM SERVICE dated 23rd September 2015, issued to the Claimant is not backed by any Law, hence not statutory as purported. ATTORNEY GENERAL OF RIVERS STATE vs. ATTORNEY GENERAL OF BAYELSA STATE & Anor. (2012) MJSC, vol.6-7 Pt. 3, 149 at 181-183 paragraphs G-C.
It is counsel’s contention that the 1st Defendant being a polytechnic, is obliged at all times, to apply the clear provisions of the RETIREMENT AGE OF STAFF OF POLYTECHNICS AND COLLEGES OF EDUCATION (HARMONISATION) ACT 2012, to its staff. That issuing the Claimant with a purported Notice of Statutory Retirement from Service without legal justification for same is ultra vires its powers and he cannot run and hide behind or under the Public Officers Protection Act. EZEANI vs. NIGERIAN RAILWAY CORPORATION (2015) 3NWLR pt.1445, 139 at 167, paragraphs D-F.
He argued that by the issuance of the purported notice of statutory retirement letter to the Claimant by the 1st Defendant, the lst Defendant, a polytechnic, acted outside the colour and scope of its office, outside its statutory duty and without a semblance of legal justification. IBRAHIM vs. JSC KADUNA STATE (1998) 14NWLR pt. 584; HASSAN vs. ALIYU (supra).
ON ISSUE 3
In the circumstance, does the protection afforded a Public Officer by the Public Officers Protection Act, apply in this case?
Counsel to the Claimant submitted that from the foregoing and all the processes filed by the Claimant in this suit especially the affidavit in opposition to the Defendants Preliminary Objection, that the protection afforded public officers by the provisions of the Public Officers Protection Act, does not avail the Defendants in this suit. That this is premised on the fact that the 1st Defendant by issuing the Notice of Statutory Retirement from Service to the Claimant, acted outside the confines of its duty and without statutory authority. SULGRAVE HOLDINGS INC. & Ors vs. FEDERAL GOVERNMENT OF NIGERIA & Ors (2012) vol.7 MJSC 34 at 55 paragraphs C-E.
The DEFENDANTS’ REPLY ON POINT OF LAW TO CLAIMANT’S WRITTEN ADDRES IN OPPOSITION TO NOTICE OF PRELIMINARY OBJECTION was dated 27th February, 2017.
With the following ISSUES FOR DETERMINATION AS FORMULATED BY THE CLAIMANT;.
- Whether a Circular or Policy Circumvent, obviate, override or cancel the provisions of an Act of the National Assembly.
- Whether if the answer to issue 1 above is NO, from where did the 1st Defendant derive the power to STATUTORILY retire the Claimant from its service.
- In the circumstance, does the protection afforded a Public Officer by the Public Officers Protection Act, apply in this case.
ON ISSUE ONE
Whether a Circular or Policy Circumvent, obviate, override or cancel the provisions of an Act of the National Assembly.
Learned defence Counsel, assuming without conceding that NCAT is a Polytechnic, submitted that the Claimant was not employed by the 1st Defendant as an Academic Staff within the purview of Section 3, Retirement Age of Staff of Polytechnics and Colleges of Education (Harmonisation) Act 2012, but as an Electronics Engineer II as contained in Paragraph 4 of the Claimant’s Statement of Facts. Furthermore, that the Act the Claimant is referring to does not apply to the Claimant’s case, thus, that the argument on a Circular overriding an Act is baseless.
ON ISSUES 2 & 3
Whether if the answer to issue 1 above is NO, from where did the 1st Defendant derive the power to STATUTORILY retire the Claimant from its service.
In the circumstance, does the protection afforded a Public Officer by the Public Officers Protection Act, apply in this case.
Defendant Counsel citing Chapter 1 Rule 1.2.4 of the 1st Defendant’s Condition of Service, submitted that the Circular in question was equally addressed to Director General/Chief Executive of Parastatals and Agencies of Government. That pursuant to the Provisions of Section 3(4) (d), Nigerian College of Aviation Technology, Cap N96 Laws of Federation of Nigeria 2004, the 1st Defendant is statutorily empowered to appoint, promote and dismiss members of its staff and that the issue of retiring Claimant falls within this statutory power of the 1st Defendant.
Furthermore, that the combined effect of Section 3 (4) (d) of the Act (supra) and Chapter 1.2.4 of its Conditions of Service mentioned above, proved that the 1st Defendant acted within the confines of its duty.
On the 28th February 2017 parties adopted their respective written addresses, adumbrated their positions accordingly and thereafter the matter was adjourned for the court’s decision.
Court’s Decision
I have carefully summarized the submission of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the defendant’s preliminary objection.
Before I delve into the merit of this application it is necessary to address the misconception or misapprehension to which both parties fell in arguing their respective position with regard to the preliminary objection. When a court is called up to determine wethere a suit is statute barred the court is required to look at the claimants statement of fact and complaint containing the claimant’s reliefs and the date the matter was filed in court. The court is required to make the determination in limine, and no other concerns are to be entertained,
