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: 7TH FEBUARY, 2017 SUIT NO: NICN/ABJ/172/2015
BETWEEN:
ADENIJIADEKUNLE BABATUNDE CLAIMANT
AND:
- FEDERAL CIVIL SERVICE COMMISSION
- MINISTRY OF FOREIGN AFFAIRSDEFENDANTS
REPRESENTATION
- A. OBATERU for the claimant
- P. OMADE for the 1stdefendants with Z.O. ALI
- O. ALI for the 2nddefendant
J U D G E M E N T
The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 4th June, 2015, against the defendants for the following reliefs:
(a) A Declaration that the various letters of dismissal purportedly given by the Defendants to the Claimant without observing the principles of fair hearing as provided for in the constitution, is wrongful, null and void and of no effect whatsoever.
(b) An Order setting aside the various letters of dismissal purportedly given by the Defendants to the Claimant without observing the principles of fair hearing as provided for in the constitution
(c) An order of this Honourable Court to the 1st and 2nd Defendants to reinstate the Claimant into the Service on Salary Grade Level 14 with effect from 1/1/2013 to place him at par with his peers with whom he joined the Service in 1983
(d) An Order for the payment of all arrears of salaries, allowances, emolument due from the Defendants to the Claimant from September 1989 till judgment is entered
(e) An Order for damages of fifteen million against the Defendants for all the inconveniences, deprivation and mental/psychological torture that the Claimant is made to pass through by the acts/omissions of the Defendants.
The Defendants filed a NOTICE OF PRELIMINARY OBJECTION on 30th October, 2015, praying the Court for AN ORDER dismissing this suit on the ground that it is statute barred.
GROUNDS OF APPLICATION
- The Claimant’s case is pending before this HonourabLe Court.
- The suit was instituted outside the statutory limitation period of three (3) months as stipulated by Section 2(a) of the Public Officers Protection Act, 2004.
The defendants in their WRITTEN ADDRESS IN SUPPORT OF NOTICE OF PRELIMINARY OBJECTION raised on sole ISSUE:
Whether or not this suit is statute barred having regards to the provisions of Section 2(a) of the Public Officers Protection Act, 2004.
Learned Counsel to the defendants P. P. Omade Esq. submitted that from the claim and the date on which the cause of action arose against the 1st Defendant/Applicant, the suit is statute barred and as such the court cannot validly assume jurisdiction over this matter as a cause of action is said to be statute-barred if in respect of it, proceedings cannot be brought because the period laid down by the Limitation Law or Act has elapsed. See EGBE V. ADEFARASIN (1987) 1NWLR, PG 3-4.
Furthermore, that the Supreme Court had made it clear that there is no distinction between “public offices” and “public officers” under the Public Officer (Protection) Law. IBRAHIM V. JUDICIAL SERVICE COMMITTEE KADUNA STATE & ANOR. (1997 -1998) All NLR 302, per Iguh JSC.
He submitted that it is trite law that in determining whether a particular action is statute barred, the court will seek to know the following:
- a) When the cause of action arose.
- b) When the plaintiff filed the action.
Relying on BANK OF THE NORTH LTD V. GANA (2006) ALL FWLR (PT 296) Pg. 669 para. 3; BANK OF THE NORTH LTD V. GANA (supra) at par 4.
It is Defence counsel’s submission that the purpose of the Public Officer Protection Act is to protect a public officer from detraction and unnecessary litigation, thus, when an action is found to be statute-barred as in the instant case, the court ought to dismiss the suit. In the case of ADEKOYA V. FH.A (2008) 11 NWLR (PT. 1099) 539; BANK OF THE NORTH LTD V. GANA (supra) at para. 9; LAMINA V. IKEJA LOCAL GOVERNMENT (1993) 8 NWLR (PT.314) 758; OBETA V. OKPE (1996) 9 NWLR (PT. 473) 401 at 429.
The 2nd defendant also filed a NOTICE OF PRELIMINARY OBJECTION on 11th December, 2015, praying the Court for An order to strike out or dismiss the suit for incompetency on ground that the condition precedent to the jurisdiction of the Honourable court and the competence of the suit at the time the cause of action arose which is the relevant time to institute this action have been irretrievably removed by the law
GROUNDS FOR THE OBJECTION
(i) That contrary to the provision of Section 2 (a) Public Officers Protection Act P.41 LFN 2004 the Claimant neither commenced this action within three months envisaged by this statute.
(ii) That the 2nd Defendant/Applicant lacks the legal personality of suing or being sued in a Court of law.
The 2nd in their WRITTEN ADDRESS IN SUPPORT OF PRELIMINARY OBJECTION
Raised the following ISSUES;
- Whether by the operation of Sec. 2 (A) Public Officers Protection Act, Cap. P. 41, LFN, 2004, this action has not become statute barred.
- Whether the 2nd defendant/applicant herein has juristic personality capable of suing or being sued as was done in this case.
ON ISSUE 1
Whether by the operation of Sec. 2 (A) Public Officers Protection Act, Cap. P. 41, LFN, 2004, this action has not become statute barred.
Learned Counsel for the 2nd defendant, Z. O. Ali Esq. submitted that the claimant’s action is against the 2nd defendant who is an agent of the Federal Government and that the act of the 2nd defendant complained of by the claimant occurred on 31st January, 2013 while the claimant commenced this action on 4th June, 2015, clearly after the 3 months prescribed by the said law. OGUN STATE GOVERNMENT v. DALAMI LTD. (2007) 6 M.J.S.C. 187 @ 198, PARAS G.
ON ISSUE 2
Whether the 2nd defendant/applicant herein has juristic personality capable of suing or being sued as was done in this case.
2nd defendant’s Counsel submitted that the 2nd defendant is not a juristic personality, is not a creation of statute neither is it a natural person that can sue and be sued, rather, that the nomenclature attached to the office of the 2nd defendant is for administrative/operational conveniences. Submitting further, that no action can be brought by or against any party other than a natural person or body of persons, unless such a party has been given by a statute, expressly or impliedly either (a) a legal personality under the name by which it sues or is sued or (b) a right to sue or be sued in that name. AGBOOLA v. SAIBU (1991) 2 NWLR (PT. 566) 576, PARA. D.
The claimant in reaction to the 1st defendant filed their REPLY TO 1ST DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION DATED 30TH OCTOBER, 2015 (dated 26th January, 2016 and filed on 12th February, 2016).
With the sole ISSUE
Whether or not this suit is statute barred having regard to the provisions of section 2(a) of Public Officers Protection Act 2004.
Learned Counsel to the Claimant F. A. Obateru Esq submitted that the instant case is one of the exceptions where the provision of Section 2 of Public Officers Protection Act will not avail a Defendant as the acts and omissions which constitute the bane of this case were done by the respective officers of the 1st and 2 Defendant arbitrarily. Paragraph 51(i) to (viii).of Claimant’s Statement of Facts; LAGOS CITY COUNCIL (TRADING UNDER THE NAME OF LAGOS CITY TRANSPORT) VS. S. A. J OGUNBIYI ADEMOLA C.JN (1969) AU NLR PG. 287.
He argued that the Public Officer Protection Act necessarily will not apply if it is established that the Defendant had abused his position for the purpose of acting maliciously. In that case he had not been acting within the terms of the statutory or other legal authority. He has not been bona-fide endeavoring to carry it out. In such state of facts he has abused his position for the purpose of doing a wrong and this protection of this Act, of course, never could apply to such a case’. NWANKWERE VS ADEWUMI (1966) NLR PG 119 at 120 HOLDEN B; OFFOBOCHE V. OGOJA L.G (2001) 16 NWLR (PT 739) 458 AT 485 A-D; IBETO CEMENT CO. LTD V. A.G FEDERATION (2008) INWLR (PT 1069) 470 AT 499, RATIO 9; EKEOGU V. ALIRI (1990) NWLR (PT 126) PG 345.
Claimant’s Counsel urged the Court to look into its record. NUHU V OGALE (2004) 1 MJSC 70 AT 74 Ratio.
Regarding the second issue, counsel submitted that a misjoinder or non-joinder of a party cannot defeat a cause or matter. FGN & ORS. V. SHOBU NIGERIA LTD (2013) LPELR- 21457. To Claimant’s Counsel, assuming that the Ministry of Foreign Affairs is a non-juristic person, the appropriate order for the court to make would be to strike out the name of the wrongly joined party, which will not in any way affect the substantial suit before the court. FGN & ORS V. SHOBU NIGERIA LTD (2013) LPELR- 21457 (SUPRA), PER CHIDI NWAQMA.
He submitted that one of the inherent obligations of the court is to take that course which does substantial justice to the parties. ABACHA V. THE STATE (2001) 3NWLR (PT 699) 35 AT 40 RATIO 14; EKPENYONG V. DUKE (2009) ALL FWLR (PT. 757).
The claimant in response to the 2nd defendant filed a REPLY TO 2ND DEFENDANT’S NOTICE OF PRELIMINARY OBJECTION DATED 11TH DECEMBER, 2015 (dated 26th January, 2016 and filed on 12th February, 2016).
And formulated the following ISSUES;
- Whether or not this suit is statute barred having regard to the provisions of section 2(a) of Public Officers Protection Act
2004?
- Whether the misjoinder or non-joinder of a party is fatal to proceedings brought before the court?
ON ISSUE 1
Whether or not this suit is statute barred having regard to the provisions of section 2(a) of Public Officers Protection Act, 2004?
Claimant Counsel submitted that the instant case is one of the exceptions where the provision of Section 2 of Public Officers Protection Act will not avail a Defendant. This is because the acts and omissions which constitute the bane of this case were done by the respective officers of the 1st and 2nd Defendant arbitrarily. Paragraph 51(i) to (viii) of Claimant’s statement of facts; LAGOS CITY COUNCIL (TRADING UNDER THE NAME OF LAGOS CITY TRANSPORT) VS. S. A. J OGUNBIYI ADEMOLA C.JN (1969) ALL NLR PG. 287. He submitted further that the Public Officer Protection Act necessarily will not apply if it is established that the Defendant had abused his position for the purpose of acting maliciously. NWANKWERE VS ADEWUMI (1966) NLR PG 119 AT 120 HOLDEN B; OFFOBOCHE V. OGOJA L.G (2001) 16 NWLR (PT 739) 458 AT 485 A-D; IBETO CEMENT CO. LTD V. A.G FEDERATION (2008) INWLR (PT 1069) 470 AT 499, RATIO 9; EKEOGU V. ALIRI (1990) NWLR (PT 126) PG 345. Claimant’s Counsel urged the Court to look into its record. NUHU V OGALE (2004) 1 MJSC 70 AT 74 Ratio.
ON ISSUE 2
Whether the misjoinder or non-joinder of a party is fatal to proceedings brought before the court?
Counsel to the Claimant submitted that a misjoinder or non-joinder of a party cannot defeat a cause or matter. FGN & ORS V. SHOBU NIGERIA LTD (2013) LPELR- 21457. Claimant Counsel continued that assuming that the Ministry of Foreign Affairs is a non-juristic person, the appropriate order for the court to make would be to strike out the name of the wrongly joined party, which will not in any way affect the substantial suit before the court. FGN & ORS V. SHOBU NIGERIA LTD (2013) LPELR- 21457 (SUPRA), per CHIDI NWAQMA. He submitted that one of the inherent obligations of the court is to take that course which does substantial justice to the parties. ABACHA V. THE STATE (2001) 3NWLR (PT 699) 35 AT 40 RATIO 14; EKPENYONG V. DUKE (2009) ALL FWLR (PT. 757).
The 2nd defendant filed a REPLY ON POINT OF LAW IN SUPPORT OF PRELIMINARY OBJECTION dated and filed 24th May 2016
Counsel to the 2nd defendant contended that the argument of the Claimant that his dismissal from the employment of the 2nd defendant was actuated by malice is ill conceived and misplaced. He referred the Court to the preliminary letter dated 24th March, attached by the Claimant wherein he was officially queried by the 2nd defendant having absented himself from duty without permission between 1989 to March, 1993 (a period of more than three years). UNILORIN V. ADENIRAN (2006) LPELR (11801) PP45-46 PARAS G-C. He submitted that if such acts stated above result in an injury to a plaintiff, it may be said that they were done maliciously. EGBE V. ADEFARASIN (1985) 1 NWLR (PT3) 560 @ 535 PARAS E-G. Furthermore, the act of issuing a query or preliminary letter to the claimant was permitted by Public Service Rules 03302.
It is counsel’s submission that it is very clear and undisputable that the 2nd defendant is a public officer and that the act complained of by the Claimant was performed by the 2nd defendant in the course of his official duties. IBRAHIM V. JSC, KADUNA STATE (1998) 14 NWLR (PT584) @1. Arguing that by paragraphs 48 and 50 of the Claimant’s statement of claim the cause of action arose on 1st January 2013 while the Claimant instituted this action clearly after the three months’ period envisaged by law. That if the action is brought after 3 months, it will be unmaintainable. OBIFUNA V. OKOYE (1961) 1 SCNLR 144. He further submitted that malice or ultra vires has no role to play in the applicability of Public Officers Protection Act. Egbe v. Yusuf (1992) 6 NWLR (pt. 245) 1, per Kawu, JSC. Learned Counsel to the 2nd defendant maintained that it is a well-established principle of interpretation that if the words used in a legislation are plain unambiguous, they should be given their natural ordinary meaning. OKUMAGBA V. EGBE (1965) 1 ALL NLR 62.
Court’s Decision
Having carefully summarized the position 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 judgment 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 defendants’ application.
The 1st defendant in their Preliminary objection raised the sole issue;
Whether or not this suit is statute barred having regards to the provisions of Section 2(a) of the Public Officers Protection Act, 2004.
The 2nd defendant on their part raised the following issues
- Whether by the operation of Sec. 2 (A) Public Officers Protection Act, Cap. P. 41, LFN, 2004, this action has not become statute barred.
- Whether the 2nd defendant/applicant herein has juristic personality capable of suing or being sued as was done in this case.
As both the 1st and 2nd defendant raised the issue of the” Section 2 (A) Public Officers Protection Act, Cap. P. 41, LFN, 2004, and whether this this action has not become statute barred” I shall deal with that issue first.
