Brig. Gen. Dahiru Abdulsalam -VS- Nigerian Army& 6 Ors

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA DIVISION

HOLDEN AT ABUJA.

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

Dated this 24^th day of October, 2018 SUIT NO: NICN/ABJ/70/2018

BETWEEN:

BRIG. GEN. DAHIRU ABDULSALAM (RTD)……………………..…..……………CLAIMANT

AND

(1) NIGERIAN ARMY

(2) NIGERIAN ARMY COUNCIL

(3) CHIEF OF ARMY STAFF

(4) ARMED FORCES COUNCIL

(5) CHIEF OF DEFENSE STAFF

(6) MINISTER OF DEFENSE

(7) ATTORNEY GENERAL OF THE FEDERATION………….……………………DEFENDANTS

Representation

Abdul Muhammedfor the Claimant/Respondent

Hassan Luqman with YunusMurtala and J.C. Onuohafor the 1^st – 6^thDefendants.

E.Aboh (Mrs.) for the 7^th Defendant.

Ruling/Judgment.

This suit was commenced by way of general form of complaint filed on 14^th March, 2018 and accompanied by a verifying affidavit, notice of address for service, statement of fact, witness statement on oath, list of witnesses, list of documents and copies of documents to be relied upon.

Arising from the Complaint and statement of fact, the Claimant claims against the Defendants the following:

1) DECLARATION that the compulsory retirement of the Claimant from the services of the Nigerian Army by the Second Defendant vide letter dated 9^th June, 2016 constitutes/constituted an unfair dismissal and punishment without any factual basis at all and is as a result wrongful, unlawful, unconstitutional, illegal and invalid.

2) DECLARATION that the action of the Defendants herein jointly and/or severally in procuring the punishment of compulsory retirement of the Claimant without any factual basis in wanton breach of all principles of natural justice as well as relevant constitutional guarantees to Claimant of due process and as shown on the facts of this case is malicious, arbitrary and constitutes abuse of office hiding under color of law and/or office and as such the Defendants are liable for all such acts of abuse of office.

3) DECLARATION that the actions of the Defendants in the circumstances presented in this case constituted a most wanton and unconstitutional application of unfair practices to the direct detriment of the Claimant.

4) ORDER setting aside the letter of compulsory retirement dated 9^th June, 2016 with reference number AHQ/MS/G1/300/226 which was issued to the Claimant by or on behalf of the Second Defendant and which punished said Claimant by compulsory retirement from the Nigerian Army, the First Defendant.

5) ORDER directing the immediate reinstatement of the Claimant to his statutory protected employment or service in the Nigerian Army and with the First — Sixth Defendants which re-instatement is to be made effective from 9^th June, 2016 in all respects and for all rights and entitlements of the Claimant.

6) ORDER that the Defendants jointly and severally shall not harass or subject the Claimant to any form of arbitrariness on account of the bringing claim before any court or tribunal or body of competent jurisdiction in pursuance of the legal right conferred on Claimant by paragraph 09.07 of the Harmonized Terms & Conditions of Service for Officers 2012 (revised) published by Fifth Defendant for benefit of Claimant and which also binds the First, Second and Third Defendants.

7) COMPENSATORY, AGGRAVATED AND EXEMPLARY DAMAGES in the sum of 5, 000,000,000 .00 (Five Billion) Naira.

8) OTHER RELIEF(S) in law or equity including but not limited to order for costs of this action on a full indemnity basis and injunctions as the court is authorized to grant under the provisions of the Constitution, under the provisions of the National Industrial Court Act and under the stipulations of the National Industrial Court Rules as this Honorablecourt deems just and proper in the circumstances.

In reaction, the 1^st to 6^th Defendants jointly entered conditional appearance as well as the 7^th Defendant. The 7^th Defendant filed a notice of preliminary objection on the 17^th of April, 2018 while 1^st – 6^th Defendants filed theirs on the 21^st of May, 2018..

The notice of preliminary objection filed by the 1^st to 6^th Defendant was brought pursuant to Section 2 (a) of The Public Officers Protection Act, CAP. P41 LFN 2004, and under the inherent jurisdiction of this Honourable Court and same was praying this court for the following:

(a) An ORDER dismissing this suit for want of jurisdiction;

(b) And for such order or further orders as this Honourable Court may deem fit in the circumstance.

The Preliminary Objection was predicated on the grounds that:

(a) The Honourable Court lacks jurisdiction to entertain this matter in view of Section 2 (a) of the Public Officers Protection Act, CAP P41 LFN, 2004. and

(b) The cause of action is statue barred and not maintainable before this Honourable Court.

In support of the Notice of Preliminary Objection is an affidavit of 6 paragraphs deposed to by one Ibrahim Ojali Patience and a written address.

By way of argument in support of the objection, learned counsel to the 1^st – 6^th Defendant, Hassan Luqman, through the written address in support, formulated a sole issue for determination to wit:

“Whether the Claimant’s case against the Defendants/Applicants commenced on the 14^th March, 2018 to enforce the cause of action which allegedly arose on the 9^th June, 2016 is not statute barred and therefore (not) maintainablebefore this Honourable Court?”

In arguing the lone issue, counsel submitted that the Defendants are public officers and cited the case of IBRAHIM v JUDICIAL SERVICE COMMISSION (1998) 14 NWLR (PT. 584)1. Counsel also cited section 2 of the POPA and submitted that the Public Officer Protection Act is a statute of limitation. It is exact as to time frame as it provides for three months and not even a day longer than three months.

Counsel submitted further that the law is trite that where a statute prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. He cited the cases of IBRAHIM V JUDICIAL SERVICE COMMISSION (1998) 14 NWLR (PT. 584)1 @ 33 and YARE V NATIONAL SALARIES, WAGES AND INCOME COMMISSION (N. S. W & I. C.) (2013) 12 NWLR (PT 1367) 173 p. 194, paras.D-E.

In addition, counsel submitted that in determining the period of limitation, the proper thing to do is to look at the process alleging when the wrong was committed which gave rise to the cause of action and comparing same with the date on which the suit or case was filed. If the time on the Originating process is beyond the period allowed by the limitation law, then the suit is automatically statute barred and therefore non maintainable. He cited the cases of MR. POPOOLA ELABANJO & 1OR. VS. CHIEF MRS GANIAT DAWODU (2006) 27 N.S.Q.L.R. 318 at 353 paras D-E.

Arising from the above, counsel posited that the averments and facts admitted by the Claimant in Paragraphs of the Claimant’s Statement of Facts filed in this action, the Claimant’s alleged cause of action arose on 9^th June, 2016 while by the Complaint filed in this matter, the Claimant commenced this action on 14^th March, 2018, almost 2 (two) years from the time the cause of action arose.

Counsel contended that the cause of action was as a result of letter of compulsory retirement issued to the Claimant on the 9^th of June 2016 and such does not fall within the exception envisaged in section 2 of POPA as a continuing injury. Counsel cited the case of INEC VS OGBADIBO LOCAL GOVERNMENT (2016) 3 NWLR (Pt. 1498) at 175 on the meaning of continuance of injury.

Counsel concluded that the court lacks jurisdiction owing to the matter being statute barred and cited the cases of THE HONOURABLE ATTORNEY- GENERAL, OGUN STATE AND 1 OTHER V. CHIEF A.B. COKER (2002) 17 NWLR (PT 796) PAGE 304 AT 329, PARAGS D-G; GABRIEL MADUKOLU & ORS (FOR THEMSELVES AND ON BEHALF OF UMUONALA FAMILY) V. JOHNSON MADUKOLU (1962) 1 All NLR 587 at 595, (1962) 2 SCNLR 341 at 384 and AARON OKARIKA & 4 ORS V. ISAIAH SAMUEL & 1 OR. (2013) 53 NSCQR (PT 1) P 220 AT 252.

Counsel prayed the court to uphold the objection.

On the part of the 7^th Defendant, the preliminary objection sought for the following orders:

1. An order of this Honourable Court striking out the name of the 7^th Defendant as a party to this suit and setting aside all the processes served on him by the Applicant as they disclose no cause of action against the 7^th defendant.

2. And for such further orders as this Honourable Court may deem fit to make in the circumstances.

The objection of the 7^th Defendant was predicated on the following grounds:

1. From the totality of the processes filed and materials pleaded by the applicant before this court, no legal, factual or circumstantial relationship has been established to exist between the Claimant and the 7^th defendant.

2. From the materials and processes filed and pleaded before this court by the Claimant, no wrongdoing or breach giving rise to a reasonable cause of action against the 7^th defendant has been disclosed to give rise to or sustain his joinder to this suit.

3. Whether this Honourable Court will exercise its jurisdiction to hear or adjudicate on the matter that is Statute Barred.

Arising from the written address in support of the Preliminary objection, learned Counsel to the 7^th Defendant, Aboh Esq formulated two issues for determination to wit:

(i) “Whether any cause of action is disclosed against the 7^th Defendant, and if he is a necessary party for the proper determination of this suit”.

(ii) Whether this Honourable Court will exercise its Jurisdiction to hear or adjudicate on the matter that is statute barred.

In arguing issue one, learned counsel contended that throughout the gamut of the Claimant’s originating process, no cause or reasonable cause of action has been established against the 7^th Defendant being the Attorney General of the Federation. She added that it is not every matter in which an agency or a Federal body is concerned that the Attorney General of the Federation can be made a party. Counsel cited the cases of ATTORNEY GENERAL of ABIA STATE v. ATTORNEY GENERAL OF THE FEDERATION (2009) ALL FWLR PT. 362 1818 and ATTORNEY GENERAL OF KANO STATE VS. ATTORNEY GENERAL OF THE FEDERATION (2007)6 NWLRPT 1029 PAGE 164 SC.

Furthermore, learned counsel submitted that a cause of action is simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. She cited the cases of EGBE V. ADEFARASIN (1985) 5 SC 50 @ 87 and ALESE V. ALADETUYI (1995) 7 SCNJ 40 @50.

Counsel posited that the Claimant has not disclosed how the 7^th Defendant wronged him, neither has he shown this Honourable Court the relief he wants from the 7^th Defendant. she also submitted that, the mere presence of other Government agencies does not warrant the need to join the Attorney General of the Federation as the Claim is against the Nigerian Army, which is a government body, established by statute, a body corporate with powers and responsibilities and can sue and be sued. We refer your lordship to the case of R. 0 IYERE V. BENDEL F. AND. F. LTD (2009) VOL. 165 LRCN, F — K.

Counsel urged the court to strike out the name of the 7^th Defendant as same is not a proper nor necessary party in this suit.

With regards to issue two, counsel contended that the subject matter of this suit is against the 1^st to 6^th Defendants and subject to the provisions of the Public Officers Protection Act, the purported cause of action according to the claimant was said to have arisen since June (2016) where a letter of termination of appointment was issued to him about two years (2) now, the Public Officers Protection Act set the limit of three months within which action can be commenced against a public officer. Counsel submitted that this suit is statute barred citing the cases of Plateau Construction Limited V. Aware (2014) 6 N.W.L.R. Part 1404 at P.519; Peacegate Oil and Gas Limited V. Hydrive (Nig.) Ltd. (2012) 17N.W.L.R. Pt. 1329 at P. 391 and A. G., Adamawa State V. A.G., Federation (2014)14 N.WL.R. Pt. 1428 at P. 515.

Counsel concluded that the Claimant having slept over his right of action,is caught by the provisions of the Public Officers Protection Act. Hence, robs this honourable court of its jurisdiction to try this suit and urged this Honourable Court to so hold.

By way of reaction to the preliminary objection of the 1^st – 6^th Defendant, the Claimant on the 9^th of July, 2018 filed a counter affidavit of 6 paragraphs deposed to by one AbdulazeezIdris Junior, three exhibits and a written address.

Arising from the written address in opposition, learned counsel to the Claimant, Abdul Muhammed argued on the issue formulated by counsel to the 1^st – 6^th Defendant. His contention was that though it is trite that actions related to exercise of a public duty by Public Officers must be commenced within three months of the accrual of the right of action, the real question in this case is to determine when the right of action accrued to the Claimant.

Counsel summarized the fact of the case which he considers undisputable thus:

1. Letter of compulsory retirement was dated June 9, 2016.

2. Claimant wrote a letter of administrative appeal to the President on June 22, 2016 in substantial compliance with section 178(1) of the Armed Forces Act.

3. The Chief of Defense Staff acknowledged receipt of the Claimant’s letter on August 8, 2016.

4. When the Claimant did not receive a decision on his appeal to the Vice President he wrote a reminder.

5. On March 17, 2017 the Deputy Chief of Staff wrote back to the claimant stating that the decision on his appeal was still pending.

6. When the Claimant issued his complaint on March 14, 2018 he was yet to receive any response from the President concerning his letter of appeal.

Learned counsel thereon submitted that the argument of the Objectors suffers from the following errors of analysis:

1. Failure to factor the provisions of section 178 (4) of the Armed Forces Act.

2. Failure to read section 2(a) of the Public Officers protection Act together with section 178 of the Armed Forces Act.

3. Failure to factor the constitutional provisions of access to the courts for all.

4. Failure to properly apply to provisions of section 178 of the Armed Forces Act to admitted (and uncontested) facts on the record.

Learned counsel also contended that the cases cited does not involve any member of Nigerian Armed Forces and in respect of which section 178 of the Armed Forces Act Applied.

Counsel also urged the court to hold that the clear intent of section 178(4) is to reckon the time for bringing action for Armed Forces personnel as running from the time that local remedies have been exhausted and immediately the prospective Claimant has received an unfavorable response on his administrative appeal. He cited the case of Coca Cola Ltd v. Akinsanya (2017) 17 NWLR (Part 1593) SC 74 at 157.

In reaction to the preliminary objection of the 7^th Defendant, the Claimant filed a 6 paragraph affidavit deposed to by one AbdulazeezIdris Junior with three exhibits and a written address.

Arising from the written address, Learned Counsel to the Claimant, Abdul Muhammed contended that the Prayer of the 7^th Defendant on the face of the preliminary objection is clearly for striking out the name of 7^th Defendant and not striking out the suit. Hence, the 7^th Defendant cannot earn more than what was prayed for.

With respect to the suit not disclosing cause of action against the 7^th Defendant, Counsel argued that the parties have been sufficiently described; the necessary ingredients of a cause based on breach of fundamental human rights within an employment contract context have been pleaded; the essential elements of an unfair dismissal claim have been set out with sufficient particularity; the pleading has set out the circumstances supporting a claim based on unfair labor practices; and the statement of facts has set out particulars of reliefs claimed which involves a relief for re-instatement into statutory protected employment with the Federal Government.

Counsel further submitted that a fair and reasonable review of the portions of the Statement of Facts and relief sought disclosed a prima facie case that requires the presence of the 7^th Defendant in order to effect an order for re-instatement should this court order it at the end of trial.

Counsel therefore contended that the Attorney-General of the Federation is a necessary, proper and desirable party. He cited the cases of Registered Trustees, CAC v. AlhaiiSalihu (2002) FWLR (Part 95, 238 at 247.

With respect to the contention that the suit is statute barred, counsel repeated similar argument canvassed in opposition to the objection of 1^st – 6^th Defendant to also maintain that the suit is not statute barred.

Counsel urged the court to dismiss both preliminary objections.

By way of reply, counsel to the 1^st – 6^th Defendants, Hassan Luqman contended that the argument of the Claimant is misconceived as section 2 (a) of the Public Officers Protection Act apply to all public officers including men of the Armed Forces. He cited the cases of Unijos vlkegwuoha (2013) 9 NWLR (Pt. 1360) 478 and Ugwuanyi v N.I.C.O.N. Insurance Plc. (2013) 11 NWLR (Pt. 1366).

Counsel further contended that section 178 of the Armed Forces Act, Cap. A20, LFN, 2004 does not apply to the case of the Claimant as presently constituted. The section does not contemplate situation wherein the Claimant is compulsorily retired. Rather, Chapter 9 Paragraph 09.O2e of the Armed Forces of Nigeria Harmonized Terms and Conditions of Service of Officers, 2012 (Revised) is the law applicable to this case. Counsel reproduced the provisions of the said section 178 of the Armed Forces Act and Paragraph 09.O2e of the Armed Forces of Nigeria Harmonized Terms and Conditions of Service of Officers, 2012 (Revised).

Counsel further argued that assuming without conceding that section 178 (4) of the Armed Forces Act applies to this case, the section does not aid the Claimant. Subsection (4) of section 178 only contemplates where the Claimant would seek internal redress within three months at the first instance and subsequently another three months making a total of six months. After the six months, the provisions of section 2 (a) of the Public Officers Act will take effect. In other words, a community reading of the provisions of sections 178 of the Armed Forces Act and 2 (a) of the Public Officers Act will only avail the Claimant nine months in total to present his case.

Taking the reply further, counsel contended that Exhibits A, AA, and AAA attached to the Counter Affidavit by the Claimant clearly show that the Claimant ran foul of the Provisions of the limitation law and has lost his right of action in this case. He posited that Exhibit AAA particularly shows that the last time the Claimant explored administrative remedy was on 17^th March, 2017 a period of one year less three days to the commencement of this action.

Counsel also added that there is no law which says that the Claimant must wait for any response either favourable or not before activating his right of action within the time stipulated by law i.e. section 2 (a) of the Public Officers Protection Act

Counsel concluded urging the court to discountenance the argument of the Claimant.

Learned Counsel to the 7^th Defendant on her part, also replied on point of law. With regards to the Attorney- General not being a party to the suit, she cited section 174 of the Constitution of Federal Republic of Nigeria 1999 (as amended) to establish the power of the Attorney General of the Federation which she contends, does not extend to court martial.

With regards to the action being statute barred, Counsel contended that the period of negotiation does not stop limitation period from running. Counsel cited the cases of ELUKPO V. IBRAHIM & ANOR (2013) LPELR – 20235 (CA) and Eboigbe v. NNPC (1994) NWLR (Pt.347)649 (1994) 6 SCNJ 71.

Counsel urged the court to strike out the 7^th Defendant and dismiss the case in its entirety.

Upon a careful consideration of the foregoing, I have examined the grounds of the Preliminary Objections and painstakingly considered the submissions of all Counsel in their respective written addresses and the reply on point of law. Arising therefrom, the issues to be determined in this ruling are to wit:

Whether or not there exist a cause of action making the 7^th Defendant a necessary party or proper party in the determination of this suit.
Whether or not in view of section 2 (a) of the Public Officers Protection Act in relation to Section 178 of the Armed Forces Act, this suit is statute barred thereby robbing this court of jurisdiction.

In resolving issue one, I foremost take into cognizance the fact that the 7^thDefendant is the Attorney-General of the Federation. His office is created by section 150ofthe Constitution of Federal Republic of Nigeria 1999 (as amended). The said section provides thus:

“There shall be an Attorney-General of the Federation who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation”.

The words are without doubt clear that the Attorney- General is the Chief Law Officer of the Federation. His role with regards to institution of cases is clearly stated in the Constitution with regards to criminal cases and that is provided in section 174 (1), (2) and (3). The instant suit is however, a civil suit wherein the Attorney-General has been sued as a Defendant. In view of this, the Attorney-General through his officer is contending that he has been wrongly joined in this suit on the basis that there is no cause of action warranting his being joined in the suit.

I must in view of this contention state what a cause of action is. The court in the case of SIFAXNIGERIA LTD & ORS v. MIGFO NIGERIA LTD & ANOR (2015) LPELR-24655(CA) held that:

“…cause of action is defined in Black’s Law Dictionary, 9th Edition at Page 57 as: “A group of operative facts giving rise to one or more basis for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” Authorities have also defined cause of action as a factual situation which a Plaintiff relies upon to support his claim, recognized by law as giving rise to a substantive right capable of being enforced against a Defendant. See AGBANELO VS UNION BANK OF NIGERIA LTD (2002) 4 SC (PT.7) 243; ADESOKAN Vs ADEGOLORU (1997) 3 NWLR (PT.493) 61; EMIATOR VS NIGERIAN ARMY (1999) 12 NWLR (PT.631) 362; AKANDE vs ADISA (2004) ALL FWLR (PT.236) 413.

Having said that, there is no gainsaying that the pleadings of the Claimant is what can disclose whether or not there are operative facts giving rise to one or more basis for suing the 7^th Defendant in this case. That being the case, the 7^th Defendant contended that from the entire gamut of the Claimant’s originating process, no cause of action has been established against the 7^th Defendant, nor how the 7^th Defendant wronged him nor the relief he wants from the 7^th Defendant.

The Claimant on the other hand posits that a review of the statement of fact and relief contained in paragraph 73 (5) discloses a prima facie case that requires the presence of the 7^th Defendant in order to effect an order for re-instatement should the court order same at the end of trial.

In consideration of the foregoing, it is imperative that I take a careful review of the statement of facts before this court and I have done so. Before I state my findings however, let me state that it must be reckoned that the office of the Attorney-General with respect to civil suit is a peculiar one that is distinct from an individual who must have had an overt participation or involvement in a narration before he can be sued. Unlike other parties, the Attorney General is usually a nominal party who represents the Government in a suit either at the instance of the Government or in defence.

The Supreme Court asserted this position in the case of Nigeria Engineering Works Ltd. v. Denap Ltd. (2001) NWLR (Pt. 746)726 when the court held that:

“But it is now well settled and as decided by this court in RansomeKuti v. A.-G. of the Federation (1985) 7 NWLR (pt.6) 221; Ezomo v. A.-G. Bendel State (1986) 4 NWLR (Pt.36) 448 at 459, that the Attorney-General is a defendant or a nominal defendant in civil cases in which the Government is sued. In this case, the action of the Governor Virtuteofficii as a public officer, which makes it a government act, was being challenged in court. This makes the Attorney-General a proper defendant to the action.”Per.Kalgo,JSC.(P.22, paras.E-G).

In the instant case, the government in question is the Federal Government, headed by the President, Federal Republic of Nigeria. Although the Claimant merely stated that the 7^th Defendant is the chief legal officer of the Federal Republic of Nigeria and a creation of the Constitution, there is no gainsaying that the 7^th Defendant represents the federal government in any suit in which it is involved.

In course of reviewing the statement of fact, I find that the suit before this court is generally that of termination of employment which would generally be between the employer and employee. The Claimant was an officer (employee) of the Nigerian Army which is under the control of the President who is himself, the Commander-in-Chief of the Armed Forces. In paragraph 20 of the Statement of Fact, the Claimant avers that the Defendants were charged by the President with the task of dealing with the officers of the Nigerian Army found culpable in the arms scandal associated with the office of the National Security Adviser and those involved in partisanship in the 2015 general election. He alleged that while the Defendants were discharging their duties,they abused the trust reposed in them. He alleged that he was compulsorily retired and wants a re-instatement.

In view of the above fact, one question that arises is whether the 7^th Defendant is a necessary party or a proper party in the determination of this suit.The court in the case of UYO LOCAL GOVERNMENT v. IDITO FISHER NIG. LTD. (2011) LPELR CA/C/230/2007 made a distinction between necessary party and proper party when it held that:

“…as well explained by the supreme court in Green vs. Green (1987) 2 N.S.C.C. 1115 per Oputa JSC at 1123 that “proper parties are those who though not interested in the Plaintiff’s claim, are made parties for some good reasons… Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff.” Per AKEJU, J.C.A. (Pp.31-32, Paras.D-A).

In clearer terms with regards to necessary parties, the court in LAJIBAM AUTO & AGRIC CONCERNS LTD & ANOR V. UNITED BANK FOR AFRICA PLC & ORS(2013) LPELR-20169(CA)held that:

“In the eyes of the law, a necessary party to a proceeding is a person whose presence and participation therein is essential for an effective and complete determination of the claim before the court, see Green V. Green (Supra); Babageju V. Ashamu (supra); Cotecna. Int’l Ltd V. Churchgate (Nig) Ltd (2010) 18 NWLR (pt.1225) 546; P.W.T (Nig.) Ltd V. J.O.B Int’l (supra)/(2010) 19 NWLR (Pt.1226) 1.” Per OGBUINYA, J.C.A. (P. 20, paras. C-E).

Be that as it may with regards to both necessary and proper parties, in CHIEF SHEHU LAWAL v. FED. MINISTRY OF ENVIRONMENT & URBAN DEVELOPMENT & ORS (2011) LPELR-9259(CA) it was held that:

“It is commonsensical that all persons who may be affected by an order of court in respect of any matter before it, as much as is practicable, be made parties in the suit. Whether they are proper parties, desirable parties or necessary parties, the result or effect is the same.” Per OKORO, J.C.A. (P.10, Paras.B-F) –

Consequent upon the above, while I reckon the contention of Counsel to the 7^th Defendant that it is not in every matter in which an Agency or a federal body is concerned that the Attorney-General of the Federation can be made a party, I do not find this instance as an exception. The Attorney-General of the Federation is not necessary for determination of this suit but he is a proper party in view of the fact that Claimant was an employee of the federal government which the 7^th Defendant represents and there exists good reasons for his joinder..

In view of the foregoing, issue one is resolved in favour of the Claimant to the effect that there exist a cause of action warranting the joinder of the 7^th Defendant as a proper party is this suit. Consequently, the objection of the 7^th Defendant in this regard is overruled.

I then proceed to issue two which is “whether or not in view of section 2 (a) of the Public Officers Protection Act in relation to Section 178 of the Armed Forces Act, this suit is statute barred thereby robbing this court of jurisdiction”. In resolving this issue,I should restate that counsel to the 1^st – 6^th Defendants and that of 7^th Defendant have contended that this suit is statute barred in view of the provision of section 2 (a) of the POPA while counsel to the Claimant contends that by the provision of section 178 of the Armed Forces Act, the suit is not statute barred. Therefore, it is important to foremost consider the provisions of the two laws in contention.

The provision of section 2 of POPA is considered a limitation law and a reproduction of same is imperative for the sake of clarity. The said section 2 (a) Public officers Protection Act, Laws of Federation of Nigeria, 2004 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 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 next after the ceasing thereof.”

The meaning, purpose and rationale of the above provision have been considered by the Supreme Court in the case of ALHAJI (DR.) ADO IBRAHIM v. ALHAJI MAIGIDA U. LAWAL & ORS(2015) LPELR-24736(SC) when it held that:

“The above provision is quite clear and simple. Its general effect is that where a law provides for the institution of an action in a court of law within a prescribed period in respect of a cause of action accruing to the plaintiff, proceedings shall not be brought after the expiration of the period circumscribed by law. More often than not, the laws of this country and elsewhere prescribe certain periods of limitation for instituting certain actions in court. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as statutes of limitation. It follows that where a statute of limitation prescribes the period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where any action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation for instituting such an action has elapsed. See Egbe v. Adefarasin&Anor. (1987) 1 NWLR (Pt. 47) 1 at 21, Oba J. A. Aremo II v. Adekanye& 2 Ors.(2004) 13 NWLR (Pt. 891) 572, Egbaigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649, Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637, Sanda v. Kukawa Local Government (1991) 2 NWLR (Pt. 174) 379. One may wonder why a person’s right of access to court should be extinguished by law. The rationale for the existence of statute of limitation is that long dormant claims have more of cruelty than justice in them and that a defendant may have lost the evidence to disprove a stale claim and that a person with a good cause of action should pursue it with reasonable diligence. See John Ekeogu v. Aliri (1990) 1 NWLR (Pt. 126) 345. …Per OKORO, J.S.C.

Having said that, I must state that the above provision applies to a public officer as in the instant suit and a ‘Public Officer’ is generally defined by section 18 of the Interpretation Act, Cap 123 LFN, 2004 “as member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria 1999, or the Public service of a state”.

See the case of INEC & ORS V. ORJI & ORS (2009) LPELR-4320(CA); REGISTERED TRUSTEE PPFN V. SHOGHOLA (2004) 11 NWLR (Pt.883) 1 at 20 para C-E.

While parties are not in contention as to whether or the Defendants are public officers for the purpose of the application of section 2 (a) of POPA, I should state that in the case of AlhajiAliyu Ibrahim vs. Judicial Service Committee, Kaduna State & 1 or (1990) 14 NWLR (part 584) 1 at page 7 ratio 7 the Supreme Court held that:

“The definition of “any person” in the Public Officers (Protection) Act cannot be read as meaning any person in any limited sense, that is to say, as referring only to natural persons or human beings. But admits and includes artificial persons such as a corporation sole, company or anybody of persons corporate or unincorporated”.

What is in contention between the parties is whether the provision applies to the case of the Claimant who has been compulsorily retired. It is generally settled that the Public Officers Protection Act applies to cases of employment with statutory flavour as in the instant case as the court in UNIVERSITY OF JOS v DR. SANI MUHAMMAD ADAM (2015) 5 ACELR 106, held that section 2 (a) of the Public Officers Protection Act renders a cause of action based on termination of employment statute barred and unenforceable where brought outside the prescribed three months period and the Supreme Court has consistently applied the provision to employment in the public sector.

To apply the provision of the Public Officers Protection Act, the court in the case of AJAYI V ADEBIYI (2012) 11 NWLR (Pt.1310) p.146 laid down the yardsticks to apply in determining whether an action is statute barred and they are:

The date when the cause of action accrued;
The date of commencement of the suit as indicated on the writ of summons (in this case the Complaint and statement of fact); and
The period of time prescribed to bring an action to be ascertained from the statute in question.

To determine the cause of action, which has earlier been defined, I take a close look at the complaint and particularly, statement of facts which reveals that the Claimant being an army officer after a series of events was served with a letter of compulsory retirement on the 9^th of June, 2016 pursuant to paragraph 09.02c (4) of the Harmonized Terms and Conditions of Service for Officers 2012 (Revised).

The compulsory retirement no doubt stand as a cause of action and taking the second yardstick into account, the Claimant instituted this action on the 14^th of March, 2018 as the stamp of this court indicates on the Complaint. By calculation, that is about 1 year and 9 months, which is far beyond the three months prescribed by the Public Officers Protection Act which puts the third yardstick into perspective.

By the application of the yardsticks, one would ordinarily conclude that it is clear that the cause of action is statute barred. However, it is at this point that I consider the provision of section 178 of the Armed Forces Act which Counsel to the Claimant wants the court to consider in relation to the application of section 2 (a) of Public Officers Protection Act. Counsel particularly contended that Counsel to 1^st – 6^th Defendant failed to apply or read section 178 of the Armed Forces Act together with section 2 (a) of POPA.

Counsel to the Claimant contended that the Claimant upon his compulsory retirement on the 9^th of June 2016, wrote a letter of administrative appeal to the President on 22^nd June, 2016 in compliance with section 178 (1) of the Armed Forces Act. The Chief of Defense Staff acknowledged receipt of the Claimant’s letter on August 8, 2016. When the Claimant did not receive a decision on his appeal to the President he wrote a reminder and on March 17, 2017 the Deputy Chief of Staff wrote back to the claimant stating that the decision on his appeal was still pending. The Claimant then decided to commence this suit on March 14, 2018.

In view of the above fact, the Claimant contends that this suit is not statute barred since his pursuit of the administrative means of resolving his cause of action is statutorily recognized. That statutory provision being section 178 (1) – (4) of the Armed forces Act.

It is without doubt, the Public Officers Protection Act is a general provision applying to Public Officers, but the Armed Forces Act is specifically regulating members of the Armed Forces as a class of public officers. Therefore the Armed Forces Act must be considered in distinction first before the general provision of the POPA. The court in this regard held in the case of Abubakar v. Attorney-General, Fed. (2007) 3 NWLR (Pt. 1022) 601 at 648 Paras. C – G (CA) that: Where there are two enactments, the one making specific provisions and the other general provision, the specific provisions are impliedly excluded from the general provisions.

It is therefore imperative to take a close look at the said section 178 (1) –(4) of the Armed Forces Act and same is hereby reproduced for sake of clarity.

(1) If an officer think himself wronged in any matter by a superior officer or authority and on application to his commanding officer does not obtain the redress to which he thinks he is entitled, he may make a complaint with respect to that matter to the Forces Council.

(2) On receiving a complaint under subsection (1) of this section, the Forces council shall investigate the matter and grant any redress which appears to the forces council to be necessary of if the complainant so requires, the Forces council shall make its report on the complaint in order to seek the directions of the President on the matter.

(3) Subject to subsection (1) of this section, an officer who feels he has been wronged in any matter shall first exhaust the administrative remedies available to him under this section of this Act before embarking on any other action.

(4) An initial complaint by an officer to his commanding officer under subsection (1) of this section, shall be made not later than three months of the wrong in respect of which it is brought, and where the officer has not obtained the redress to which he thinks himself entitled, he may make a further complaint in the prescribed manner to the authority prescribed under subsection (1) of this section not later than three months to the complaint or of receiving the unfavourable redress, as the case may be.

A careful reading of subsection (1) of the said section clearly shows that the Claimant is expected to make complaint to the Forces’ Council who in subsection (2) would seek direction of the President. Learned Counsel to the 1^st – 6^thDefendant had contended that the appeal made to the President ought to be under Chapter 9 Paragraph 09.02e of the Armed Forces of Nigeria Harmonized Terms and Conditions of Service of Officers, 2012 (Revised). The said Chapter 9 Paragraph 09.02e reads thus:

“an officer called upon to retire, resign or to relinquish his commission shall if he so desires, appeal to Mr. President, C-in-C through the CDS within 30 days to have his case reconsidered.”

I do agree with the learned Counsel to the extent that the said Chapter 9 Paragraph 09.02e is most appropriate provision to adopt, but in view of the fact that the Armed forces Act applies to all members of Nigerian Armed Forces which the Claimant is and the fact that the provision of the Chapter 9 Paragraph 09.02e of the Armed Forces of Nigeria Harmonized Terms and Conditions of Service of Officers, 2012 (Revised) cannot override the Armed Forces Act which is an Act of the National Assembly, especially as same has not excluded the operation of the Act, the provision of the Act is relevant in determining when the Claimant can approach the court for remedy.

Having said that, I take particular cognizance of subsection (3) of section 178 of the Armed Forces Act as reproduced above with the clear wording that an officer who feels he has been wronged in any matter shall first exhaust the administrative remedies available to him under this section of the Act before embarking on any other action. One operative word in the said subsection is the word ‘shall’ which generally suggests a thing to be mandatory. The court in the case of Nwankwo v. Yar’adua (2010) 12 NWLR (Pt. 1209) 518 S.C. held that:

“The word shall when used in a statutory provision imports that a thing must be done. It is a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation.” Per. Adekeye, J.S.C. (P. 78, paras. C-E).

The above provision therefore mandates the Claimant to exhaust all administrative means before taking any other action such as approaching the court.

The compliance with such administrative means particularly such stipulated by statute can be regarded as a pre-condition for instituting a case as stated by the court in ETUBOM EKPO EKPENYONG EFIOK v. THE GOVT. OF CROSS RIVER STATE & ORS.(2010) LPELR-4078(CA) when the court held that:

“Where there is no-compliance with stipulated pre-condition for setting a legal process in motion, any suit instituted in contravention of the pre-condition provision of the relevant law is incompetent and a court of law is for that reason lacking in jurisdictional power to entertain it. Refer to INC. VS. MOBIL OIL (NIG) PLC (1999) 5 NWLR (pt 601) 9 and MADUKOLU VS.NKEMDILIN (supra)” (P. 14, paras. A-C)

Perhaps, the Claimant complied by appealing to the President as he contended and did not approach the court within three months as stipulated by section 2 of POPA.

The question that necessarily follows is whether upon exhaustion of the administrative procedure, the Claimant still need to comply with the time limit stipulated by section 2 (a) of the POPA?

This question is answered in the light of the fact that there is no provision of the Armed Forces Act that expressly foreclose the operation of the Public Officers Protection Act. More, going by the provision of subsection (4) of section 178 of the Armed Forces Act, merely provides a time of three months to complain to the Forces’ Council under subsection (1) where the claimant receives an unfavourable response.The said sub-section (4) is not a regulation of time within which the Claimant can approach the Court. The court inSARAKI v. FRN(2016) LPELR-40013(SC) held that:

“It is also trite that when interpreting the provisions of a statute, the Court must not ascribe meanings to clear, plain and unambiguous provisions in order to make such provisions conform to the Court’s view of their meaning or what they ought to be. See: A.G. Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (pt.618) 187 @ 264 G – H.”Per KEKERE-EKUN, J.S.C. (Pp. 108-109, Paras. E-A)

The words of the statute is very clear and unambiguous and requires no secondary meaning. Therefore, upon the exhaustion of the administrative proceeding, the time stipulated by the Public Officers Protection Act would start to run as the administrative proceeding merely freezes the limitation period. See the case of Sifax Nig. Ltd v. Migfo Nig. Ltd (2018) 9 NWLR 1623) 138.

In view of the forgoing, the Claimant was served with a letter on the 17^th of March 2017 with respect to the appeal against his compulsory retirement which clearly informs him that his submission has been forwarded to the appropriate authority for further consideration. The Claimant was perhaps not satisfied with this response bringing about a renewal of the cause of action leading to his decision to institute this suit in respect of the Compulsory retirement but he still waited for about a year to do same in clear violation of section 2 of the Public Officers Protection Act.

Consequently, in view of the above authorities and in view ofprovisions of section 2 (a) Public officers Protection Act and section 178 of the Armed Forces Act, the suit of the claimant even after the exhaustion of administrative remedy, falls out of the limitation period as provided under Public officers Protection Act and same is accordingly declared to be statute barred.

Consequently, issue two is therefore resolved in favour of the Defendants to the effect that this suit is statute barred.

It is imperative to restate that a statute of limitation, once established and grounded would manifestly rob the court of jurisdiction and once that happens the court cannot do anything with regards to any claim sought before it. The Supreme Court in INEC v. OGBADIBO LOCAL GOVERNMENT & ORS (2015) LPELR-24839(SC) held that:

“It is clear from the above judicial views on the basis of limitation law, once a defence of limitation of time is stated and grounded in the averments in support of the summons, (as in this case at hand) and it is established, this bars the plaintiff’s remedy and extinguishes the right of his action; then the Court will wash off its hands and decline to entertain the action. This in effect means that there is absolutely no basis for prying into the conduct of the Appellant howsoever which gave rise to the action…”See AMADI v. NNPC (2000) 6 SC (Pt.1) 66; INAKOJU v. ADELEKE (2007) 4 NWLR (PT.1025) 423.”Per GALADIMA, J.S.C.

Where the court finds that it lacks jurisdiction to hear and determine a suit, the proper order the court should make is an order striking out the matter. See W.A.E.C v. Adeyanju (2008) 9 NWLR (Pt.1092) 270 at 296, paras. C-D (SC).

In the final analysis, I find the preliminary objection as raised by the Defendants to be competentand same is hereby upheld. Consequently, this suit is accordingly struck out due to lack of jurisdiction.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.