IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE BAUCHI JUDICIAL DIVISION
HOLDEN AT BAUCHI
BEFORE HIS LORDSHIP HON. JUSTICE K.I. AMADI
Date: July 9, 2018
Suit No. NICN/BAU/01/2018
Between
ADO MUHAMMED
CLAIMANT
AND
BAUCHI STATE GOVERNMENT
BAUCHI STATE JUDICIAL SERVICE COMMISSION
DEFENDANTS
Representation:
MukhtarA.Usman with J. G. Onoja for the Claimant
Aliyu Bin Idris with F.B.Mohammed and S.M.Toro for the Defendant
Ruling/Judgment
By a writ of general form of complaint filed on January 3, 2018 the claimant commenced this action claiming as follows:…………………………………………………………………………………………………………………………………………………………………………
By a notice of preliminary objection dated January 3, 2018 and filed on that same January 3, 2018, the defendants/applicants brought this application praying for:
1 An Order dismissing the suit for lack of jurisdiction to entertain same.
2 An order striking out this suit against the 1st defendant/applicant same having disclosed no reasonable cause of action against it.
3 And for such order or further orders as this Honourable Court may deem fit to make in the circumstances.
The grounds upon which this application is brought are that:
- The case of the claimant is caught up by the statute of limitation and therefore statute barred.
- The case of the claimant against the 1stDefendant/Applicant discloses no reasonable cause of action.
In arguing this application, the learned counsel for the Defendants/Applicants relied on his supporting affidavit of 6 paragraphs. Counsel adopted his written address in support of the application. Counsel urged the court to grant this application by dismissing.
The Learned counsel for the Claimant /Respondent on the other hand, opposed this motion by relying on his counter affidavit of 7 paragraphs. Counsel adopted his accompanying written address captioned Reply on point of Law. Counsel urged the court to dismiss this application.
I have read very carefully all the documents filed by both sides in this case and came to the conclusion that the only issue that calls for determination in this application is whether this suit is statute barred.
Both parties agreed that the cause of action in this case arose from the compulsory retirement of the claimant by the 2nd defendant on the 6th day of April 2017 via its letter reference number BAS/JSC/S/RET/1.
It is also not in dispute that the Claimant/Respondent commenced this action by a writ of General Form of Complaint dated the January 3, 2018and filed on that same date.
In his address in opposition to this objection the learned counsel for the claimant submitted that the defendants do not fall within the contemplation of the Public Officers Protection Act. That the defendantsare not natural persons.That the protection offered by section 2(a) of the Public Officers Protection Law of Bauchi State applies only to natural persons and individuals who hold public offices. Counsel cited the cases of Tafida v Abubakar(1992)3NWLR(Pt.230)511Momoh v Okewale (1997) 6SC81.Counsel urged the court to hold that the Public Officers Protection Act is inapplicable as the Defendants are not public officers.
From the foregoing, the real issue is whether the defendants are public officers for the purpose of Public Officers Protection Act? The Supreme Court in the case of Ibrahim v. Judicial Service Commission, Kaduna State [1998] 14 NWLR (Pt. 584) 1 held that the words ‘Public Officer’ are synonymous with the words ’Public Office’ Public Bodies or institutions which include every officer or department vested with the performance of duties of a public nature. I am bound by the definition of the apex court on this issue; I therefore hold that the defendants herein is a public officers.
At this point, it is very important to reproduce the provisions of that Section 2(a) of the Public Officers Protection law of Bauchi State which provides thus:-
2 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, the following provisions shall have effect”.
(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 after the ceasing thereof
Section 2 (a) of the Public Officers Protection Law no doubt imposes a three month period of limitation of action against Public Officers and time begins to run when there is in existence a person who can sue and another who can be sued in respect of the cause of action, that is to say the moment the cause of action arose, see the case of Fadare v. AG Oyo State 1982 4SC 1.
It is trite that what a court is enjoined to look out for in deciding whether a suit is statute barred or not are:-
(a)The date when cause of action arose and
(b) The date of filing of the originating processes and then check whether or not the period of limitation has been exceeded, seePopoolaElabanjo& Or V Chief (Mrs.) GaniatDawodu [2006] 6 S.C.N.J 204 at 227 and PN Uddoh Trading Co. Ltd. V Abere [2001] FWLR (Pt. 57) 922.
There is no dispute that the cause of action in this case arose on April 6, 2017, the Claimant commenced this suit on the January3, 2018 about 8 months after he ought to have commenced this suit.The Claimant/Respondent is not saying that the act of compulsorily retiring him from the service of the 2nd defendant is outside the colour or statutory or constitutional duty of the 2nd defendant. Rather his complaint is against the manner in which that exercise was carried out, in my mind that gave the Claimant/Respondent a cause of action exercisable within 3 months after which it will lapse. See Ibrahim v. JSC, Kaduna State &ors (supra).
In, Rahamaniyya United (Nig.) Ltd v. Ministry for Federal Capital Territory &ors [2009] 43 WRN 124 CA at 145 at 146, applying Chigbu v. Tonimas (Nig.) Ltd [2006] 31 WRN 179; [2006] 9 NWLR (Pt. 986) 189 SC at 210,the court held that the propriety or otherwise of the act of the defendants is not a relevant consideration for the applicability of the Public Officers Protection Act. The court continued that, if an action against a public officer or public institution and organization is statute-barred having not been brought within the prescribed period of three months, there will be no basis for investigating the conduct of the public officer which gave rise to the action. That the conduct of the defendants as to whether they were malicious or not is irrelevant in determining whether the cause of action is statute-barred under section 2 of the Public Officers Protection Act, referring to Egbe v Adefarasin [2002] 14WRN57.
In sum, I hold that this instant case is caught up by section 2(a) of the Public Officers Protection law and is therefore statute barred. In the case of Nigeria Ports Authority Plc v. Lotus Plastics Ltd.(2005) NSCQR,Vol.24 p. 566 at 592 the court held that:
‘Where a defendant raises a defence that the plaintiff’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 Plaintiff’s action and not to merely strike it out.’
I hereby dismiss this suit. I make no order as to cost.
Ruling/Judgment is entered accordingly.
…………………………
Hon. Justice K. I. Amadi, Ph.D.
