LawCare Nigeria

Nigeria Legal Information & Law Reports

National Industrial Court

DR. AUGUSTINE PETERLIN OGENE -VS- FEDERAL CIVIL SERVICE AND ORS

admin 0

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HONORABLE JUSTICE E. N. AGBAKOBA

 

DATED 29TH MARCH 2017                                               SUIT NO: NICN/ABJ/288/2015

 

BETWEEN

  1. AUGUSTINE PETERLIN OGENECLAIMANT

 

AND

  1. FEDERAL CIVIL SERVICE COMMISSION
  2. OFFICE OF THE HEAD OF THE CIVIL SERVICE

OF THE FEDERATION DEFENDANTS

  1. FEDERAL CAPITAL DEVELOPMENT AUTHORITY (FCDA)         DEFENDANTS
  2. FEDERAL CAPITAL TERRITORY ADMINISTRATION (FCTA)
  3. HON. MINISTER, FEDERAL CAPITAL TERRITORY

REPRESENTATION

  1. O. NJOKUfor the claimant

CHINOBI UMAR for the 1st defendant

  1. O. OMONUWADirector Legal Services 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 22nd September, 2015 against the defendants for the following reliefs:

  1.  A DECLARATION that the employment of the Claimant is statutorily flavoured and accordingly, he cannot be retired save upon attainment of 60 years of age or 35 years in service.

  1.  A DECLARATION that the retirement of the Claimant in 2007 is a flagrant breach of his contract of employment which is statutorily flavoured.

  1.  A DECLARATION that the 3rd to 5th Defendants have no rights to retire the claimant save in strict compliance with his contract of employment and in accordance with the Civil Service Rules.

  1.  A DECLARATION that it is only the 1st and 2nd Defendants that have the power to discipline, terminate and/or retire the Claimant in accordance with his contract of employment and the Civil Service Rules.

  1.  A DECLARATION that the Claimant is still in the employment of the Defendants until the attainment of 60 years of age or 35 years in service whichever comes first.

  1.  A DECLARATION that the Claimant is entitled to all his entitlements including salaries, salary increments, attendant promotions, pension contributions, retirement benefits, gratuities up to the date of his statutory retirement.

  1.  A DECLARATION that the Claimant is/was still a staff of the 1st and 2nd Defendants until the attainment of 60 years or 35 years in service.

  1. AN ORDER OF THIS HONOURABLE COURT setting aside the retirement of the Claimant by the 3rd to 5th Defendant in 2007 as being illegal, unlawful and a flagrant violation of his contract of employment and the Civil Service Rules.

  1. 9. AN ORDER OF THIS HONOURABLE COURT directing the Defendants to place the Claimant in the same grade level with his contemporary before his statutory retirement.

  1.  AN injunction restraining the Defendants whether by themselves, agents, assigns, privies or whosever purporting to act on their behalf from retiring the Claimant until he attains the 60 years of age or 35 years in service.

  1.  THE SUM OF N500 MILLION NAIRA as General Damages for the unlawful retirement of Claimant.

  1.  THE SUM OF N50 MILLION NAIRA as cost of this action.

The 1st Defendants filed a NOTICE OF PRELIMINARY OBJECTION on 23rd March, 2016 and dated same day, seeking the following reliefs:

  1.  An order dismissing this suit on the ground that it is statute barred, and therefore the court lack the jurisdiction to hear and determine same.
  2.  An Order striking out the name of the 1st defendant in this suit for Misjoinder or non-disclosure of any cause of action against the 1st defendant.
  3.  And for such further orders as this Hon Court may deem fit to make in the circumstance.

GROUNDS UPON WHICH THE APPLICATION IS BROUGHT.

 

(1)        Whether this suit is not statute barred, having been brought in breach of section 2 (a) of the public officers protection Act 2004.

(2)        Whether the suit disclose any cause of action against the 1st  defendant to warrant joining him as a defendant in this action.

The 1st Defendant also filed a WRITTEN ADDRESS IN SUPPORT OF PRELIMINARY OBJECTION.

Wherein they raised two (2) ISSUES;

 

ON ISSUE 1

Whether this suit is not statute barred, having been brought in breach of section 2 (a) of the public officers protection Act 2004.

 

Learned Counsel to the 1st Defendant C. Umar Esq. submitted that the claimant’s purported letter of dismissal was served on the claimant on 31st May, 2007, while the claimant did not file the suit until 22nd  September, 2015, which is over 5 years after the cause of action have accrued. Aremu vs. Adekoya (2004) Vol. 1219 LRCN page 4853 at 4872; NEPA vs. Olagunju 2005(3) NWLR part 913, page 602; YUSUF V. EGBE (1987) NWLR (PT. 56) 341- 344, per KUTIGI, JCA (as he then was).

ON ISSUE 2

Whether the suit disclose any cause of action against the 1St defendant to warrant joining him as a defendant in this action.

From the claimant amended statement of facts and witness deposition on oaths the 1st defendant was referred to only in paragraphs 3 of the claimant prayer & 33 & 34 of the statement of claim which relate only to the fact that the 1st defendant employed the claimant. IGBOKWE KEHINDE 2008 (2) NWLR PT 72 PG 441 AT 451. 1st defendant’s Counsel argued that the 1st defendant is not a necessary party in this suit and that the claimant’s case can be completely and effectively determined in the absence of the 1st defendant. OJO VS OGBE 2007 (9) NWLR pt. 1040 pg. 542 AT 557 TO 559; ABUBAKAR VS INEC (20040 1 NWLR (PT. 854) Pg. 207 at Pg. 233.

The Claimant in response filed a WRITTEN ADDRESS IN OPPOSITION TO THE   1ST DEFENDANT’S PRELIMINARY OBJECTION filed on 31st May, 2016.

Where4in the Claimant also raised two (2) ISSUES

  1.  Whether the 1st Defendant can take refuge under the Public Officers Protection Act when he has acted in bad faith?
  2.  Whether this suit discloses any cause of action against the 1st Defendant to warrant joining him as 1st Defendant in this Suit.

ON ISSUE 1

Whether the 1st Defendant can take refuge under the Public Officers Protection Act when

He has acted in bad faith?

 

Learned Counsel to the Claimant I. D. Njoku Esq. submitted that where a public officer by act of malice or otherwise acts outside the scope of his statutory duty, the provisions of Section 2(a) of the Public Officer Protection Act cannot avail him, thus, that the issue of statute of limitation will not arise. UNILORIN V. ADENIRAN (2007) 6 NWLR (PT. 1031) PAGE 498 AT O6 RATIO 4 506 RATIO 4; S.B.N. PLC. V. C.B.N. (2009) 6 NWLR (PT. 1137) PAGE 237 AT254 RATIO 11; EKEOGU V. ALIRI (1990) 1 NWLR (PT.) 126 PAGE 345 AT 347 RATIO 4; HASSAN V. ALIYU (2010) 17 NWLR (PT. 1223) PAGE 547 (SC); IBRAHIM V. J.S.C. KADUNA STATE (1998) 14 NWLR (PT. 584).

ON ISSUE 2

Whether this suit discloses any cause of action against the 1st Defendant to warrant joining him as 1st Defendant in this Suit.

 

Claimant’s Counsel submitted that a cause of action arises when the material facts that will entitle a party to maintain an action against another for enforcement of his right are in place. We refer my lord to the case of PATKUM INDUSTRIES LTD. V. NIGER SHOES MANUFACTURER CO. LTD. (1986) 5 NWLR PART 93 PAGE 138 AT 140 RATIO 5; AG. FEDERATION VS. AG. ABIA STATE (2001) 11 NWLR PART 725 PAGE 689 AT 702 & 703 RATIOS 11 & 12; ALALADE V. MOROHUNDIYA (2002) 16 NWLR PART 792 PAGE 81 AT 86 RATIO 1; OGBAH V. B.D.U JOS BRANCH (2001) 3 NWLR PART 701 PAGE 579 AT 582 RATIOS 1,2 & 4 @ Ratios I and 2. Claimant’s Counsel continued, assuming without conceding that the 1st Defendant was mis-joined and as such should be struck out from the suit, opined that the indispensable question therefore is, whether the absence of the 1st Defendant from this suit will affect the just, effectual and effective determination of this instant case? In answering this question, he relied on the case of O.U. DAVIDSON GROUP CONS. (NIG) LTD. BEES ELECT. CO. LTD. (2001) 9 NWLR PART 719, on who a necessary party is. Listing out the three categories of persons in an action namely:

  1. Proper parties;
  2. Desirable parties and
  3. Necessary parties.

 

He submitted that the Court of Appeal defined proper parties as those though not interested in the Plaintiff’s action, are made parties for some good reasons, while Desirable parties as those who have an interest or who may be affected by the result of the Plaintiff’s action and necessary as parties as those who are not only interested in the subject matter of the proceedings but also who, in their absence, the proceeding could not be fairly dealt with. AJAYI V. JOLAYEMI (2001) 10 NWLR PART 722 PAGE 219.

 

On the 6th February 2017 parties adopted their respective written addresses, adumbrated their positions accordingly and the matters was reserved for this court’s decision.

 

Court’s Decision

I have carefully summarized the submissions 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 defendants application. In determining this application I find that the issues as formulated by the claimant succinctly address all the variable contentions in this suit and I shall adopt these issues as the issues for determination in this suit.

  1. Whether the 1st Defendant can take refuge under the Public Officers Protection Act when he has acted in bad faith?
  2. Whether this suit discloses any cause of action against the 1st Defendant to warrant joining him as 1st Defendant in this Suit.

With regard to issue a, whether the 1st Defendant can take refuge under the Public Officers Protection Act when he has acted in bad faith?

The position of the law is that when a court is called upon to determine whether a matter statute barred by virtue of Public Officer Protection Act the court is required to look at the compliant and statement of fact to determine when the cause of action arose and to juxtapose this with the date the action was instituted in court. if the interval exceeds the limitation period, which in this case is three (3) months then the matter falls out side the limitation period and is statute barred, if the interval between the date the cause of action arose and the date the action was instituted is less than the statutory limitation period then the matter is not caught up by the limitation period and the matter can proceed to trial. See the case of AGBOROH v. WAEC (2014) 43 NLLR (PT. 134) 31 NIC @ 34 Where this court held that “the determination of whether a suit is statute barred or not involves the determination of the date on which the cause of action arose and comparing same with the date on which the suit was filed. If the date on which the suit was filed shows that the claimant came outside the period within which he should have come to court, the suit will said to be statute barred. This comparison can be done without taking oral evidence from witnesses. See also the cases of EMIATAR V. THE NIGERIAN ARMY & 4 ORS [1999] 12 NWLR (PT. 631) 364 AT 372; [1999] 9 SCNJ 52, MRS. O. ADEKOYA V. FEDERAL HOUSING AUTHORITY [2008] 4 SC 167 and CHIEF YAKUBU SANI V. OKENE LOCAL GOVERNMENT TRADITIONAL COUNCIL [2008] 5 – 6 SC  (PT. II) 131

Looking at the claimants reliefs;

  1.  A DECLARATION that the employment of the Claimant is statutorily flavoured and accordingly, he cannot be retired save upon attainment of 60 years of age or 35 years in service.

  1.  A DECLARATION that the retirement of the Claimant in 2007 is a flagrant breach of his contract of employment which is statutorily flavoured.

  1.  A DECLARATION that the 3rd to 5th Defendants have no rights to retire the claimant save in strict compliance with his contract of employment and in accordance with the Civil Service Rules.

  1.  A DECLARATION that it is only the 1st and 2nd Defendants that have the power to discipline, terminate and/or retire the Claimant in accordance with his contract of employment and the Civil Service Rules.

  1.  A DECLARATION that the Claimant is still in the employment of the Defendants until the attainment of 60 years of age or 35 years in service whichever comes first.

  1.  A DECLARATION that the Claimant is entitled to all his entitlements including salaries, salary increments, attendant promotions, pension contributions, retirement benefits, gratuities up to the date of his statutory retirement.

  1.  A DECLARATION that the Claimant is/was still a staff of the 1st and 2nd Defendants until the attainment of 60 years or 35 years in service.

  1. AN ORDER OF THIS HONOURABLE COURT setting aside the retirement of the Claimant by the 3rd to 5th Defendant in 2007 as being illegal, unlawful and a flagrant violation of his contract of employment and the Civil Service Rules.

  1. 9. AN ORDER OF THIS HONOURABLE COURT directing the Defendants to place the Claimant in the same grade level with his contemporary before his statutory retirement.

  1.  AN injunction
admin

Website:

Related Story