Gnr. Idris Abdulrahman -VS- The Nigeria Army & ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA

SUIT NO: NICN/LA/574/2017

DATE: FEB. 08, 2019

BETWEEN:

GNR. IDRIS ABDULRAHMAN – CLAIMANT

AND

THE NIGERIAN ARMY
THE CHIEF OF DEFENCE STAFF ]- DEFENDANTS

REPRESENTATION:

Felix Agbonrofo, Esq., – for the Claimant;

P.E Okohue, Esq.,( with V.U Oforka, Esq.) – for the Defendants.

JUDGMENT

The Claimant, an Army Personnel, who left his duty post, though with permission, but on his way outside the Barracks, got entangled with some vigilante group, which led to a Remand Order issued against him by a Magistrate’s Court, whereupon he spent over 7 years in Kirikiri Prison, and after regaining freedom, later approached this Court vide a General Form of Complaintsdated and filed on 22^nd November 2017, along with the requisite frontloaded court processes,basically seeking from his employer (the Army Authorities), to account for all his emoluments from August 1999 till date, and for payment of same.

By an Amended Statement of Facts dated and filed on 19^th April 2018, which Order was granted on 20^th March 2018, the Claimant prays the court for the following Reliefs:”

(i) An Order directing the Defendants to pay the Claimant the sum of N732,000 due to the Claimant as accrued monthly salaries as at November 2017.

(ii) An Order directing the Defendants to compute and render an account of all the monies due to the Claimant as allowances, pensions and emoluments from August 1997 to November 2017.

(iii) An Order directing the Defendant to pay to the Claimant his due and outstanding allowances, pensions and other emoluments from August 1997 to November 2017.

(iv) Payment of the sum of N1, 000,000 (One million naira) being cost of this action.

(v) Interest on the Judgment sum at the rate of 10% per annum from the date of judgment is entered in this suit till final liquidation of the judgment sum”.

Upon service of the court processes, the Defendants entered appearance through their Counsel, P.U Okohue & Co, who filed their Memorandum of Appearance, Defendants’ Statement of Defence and Witness Statement on Oath of their sole Witness, all dated 19^th March 2018 and filed on 29^th March 2018, and later regularized by the court’s order of 5^th June 2018, as they were all filed and served out of the prescribed time line. The Defendants also reacted with a Notice of Preliminary Objection, also dated 19^th March 2018 and filed on 29^th March 2018, challenging the jurisdiction of the court on the ground that the suit is Statute barred, having been caught up with the prescribed three month- time limit to commence an action against Public Officer, pursuant to S.2 (a) Public Officers Protection Act, Cap.P41, Laws of the Federation 2004.

On his part, by a Counter-Affidavit sworn to by the Claimant on 23^rd April 2018 along with a Claimant/Respondent’s Written Address dated and filed on the same 23^rdApril 2018, the Claimant opposed the said Defendants’ Notice of Preliminary Objection against the suit. At the proceedings of 5^th June 2018, I observed that upon review of the averments for and against the Notice of Preliminary Objection and the Pleadings filed and exchanged by the parties, the exact period the cause of action arose for which the objection would be considered was grossly disputed by the parties, and can be ascertained clearly by taking evidence. On that note, I invoked the provisions of Or.18 R.2 (2) (3) NICN (CP) Rules 2017, and directed the Notice of Preliminary Objection to be heard together with the substantive suit.

THE PRELIMINARY OBJECTION:

At the resumed proceedings of 21^st June 2018, the Notice of Preliminary Objection was set down for Hearing. Moving the Application, learned Defendant’s lead counsel, drew court’s attention to the Notice of Preliminary Objection dated 19^th March 2018 and filed on 29^th March 2018, and brought pursuant to S.2(a) of the Public Officers Protection Act (POPA), Cap. P4, Laws of the Federation of Nigeria (LFN) 2004, and under the inherent jurisdiction of the court.

The Motion is praying for: the court to decline jurisdiction on the ground that the suit is statute-barred and for other sundry consequential reliefs. The grounds for the Application are: That the Defendants/Applicants are public officers within the law, and action relating to them as presently constituted must be instituted within three (3) months from occurrence of the cause of action; The Claimant was deemed convicted and dismissed in July 1997, and that action was not commenced until 22 November 2017; Assuming that his letters of 19/10/2010 and 11/02/2013 re-opened the Claimant’s case, he is still out of time statutorily, for not commencing his action within the statutory period; and that the Claimant has no more record with the Defendants.

The Motion is supported by an 11-paragraph Affidavit, sworn to by one Valentine Oforka, a legal practitioner with the Defendant’s Solicitors. No exhibit was attached. Also filed is a Written Address dated 19^th March 2018 and filed on 29^th March 2018, which was adopted by counsel, who raised a sole issue for determination, to wit: Whether the Respondent’s action is not statute-barred having not started his action within the statutory period of 3 months, the Applicants being public officers?

The crux of the Applicants’ counsel’s submission is that the Claimant was a member of the Nigerian Army enlisted in 1980. He was in service receiving all his entitlements until 1997 when he was given 3 days pass but after the 3 days he did not come back, and his whereabout was unknown until 19^th October 2011, when he resurfaced and stated that he was in prison custody for 7 ½ years, and was released on 1^st November 2004. Counsel pointed that even counting from that period of his release, he only approached this court on 22^nd November 2017. Counsel contended that apart from the statutory period, the Claimant ceased being subject to ‘service law’, being a ‘deserter’ effective August 1997, by virtue of S.173 Armed Forces Act, Cap.A20 LFN 2004.

While urging the court to uphold his submissions, counsel cited and relied on a host of cases on application and effect of successful invocation of limitation law on a pending suit commenced outside prescribed time by statute, particularly, the POPA, such as: Jimoh v. Ibrahim v. JSC [1998]14 NWLR (Pt.584)1; Christiana I. Yare v. National Salaries, Wages and Income Commission (2013) LRCN 219 (pt.2)53; NNPC & Anor. v. Chief Stephen Orhiowan Sale & Ors. (2013) LRCN 219 (pt.1)1; all to the effect that the court lacks jurisdiction to entertain suit commenced outside the statutory prescribed period.

The Claimant/Respondent in reactionhad filed and served a14-paragraphCounter-Affidavit sworn to by the Claimant himself on 23^rd April 2018 together with a Written Address dated and filed on 23^rd April 2018. Counsel was absent at the hearing of the Motion. Though earlier report by the Claimant was that his counsel informed him of his absence due to ill-health, but by the later communication via SMS text with the Defendant’s counsel while in court, Claimant’s counsel indicated that he was in court premises but he could not be found after waiting for his entrance in the courtroom for a while. In the absence of Claimant’s counsel to argue his side of the issues, and being absent without cogent reason, the Claimant’s said Written Address was deemed adopted in line with Or. 45 R.7 NICN (CP)Rules 2017.

In the Claimant’s Written Address, counsel also raised a sole issue for determination: “Whether the Claimant’s action is statute barred for non- compliance with S.2(a) POPA?”. He contended that there is no evidence by the Defendants of compliance with Ss. 172; 173(1)(2) Armed Forces Act (AMA), which was relied on by the Defendants/Applicants, and more so, that there is no evidence of the averment that the Claimant’s record is no longer with the Defendants, as there is no law that excused the Defendants from keeping the record , which in deed, it ought to keep. Counsel further contended that the Claimant never appeared before a Court Martial set up by the Defendants, and there was no Board of Enquiry on his absence, since none was shown.

Although Claimant’s conceded that the matter was in deed filed outside the prescribed time line of 3 months under POPA, yet, it is counsel’s firm contention that the general rule of limitation of action set out under S.2(a) POPA is not absolute and admits of exceptions, such as where the public officer acted ‘outside the colour of office’ or ‘bad faith’ and that POPA does not apply to contracts of employment, and cases of ‘continued damage’ also constitutes an exception to general application of POPA . To buttress his point, counsel cited and relied on a number of cases on the exceptions to application of POPA, such as: Anozie v. Attorney General of the Federation [2008]10 NWLR (Pt.1095)278@290-291; Hassan & Ors. v. Borno State Govt. & Ors. (2016) LPELR-40250(CA); Nigeria Stored Products Research Institute v. Board of Internal Revenue, Kwara State (2013) LPELR-22073(CA); Govt. of Nigeria & Ors. v. Zebra Energy Ltd [2002]18 NWLR (Pt. 798)162; Osun State Govt. v. Dalami (Nig.) Ltd [2007]9NWLR (Pt.108)66; University of Ilorin v. Aderian (2007) All FWLR (pt.382)1871@1913, paras. E-G (CA); Offoboche v. Ogoja Local Govt [2001]16 NWLR (Pt.793)458; Tolorunleke v. ARMTI (2009)16WRN 39.

Counsel submitted that having not set up a Board of Inquiry to inquire into the Claimant’s absence and not shown any report that declared the Claimant, AWOL , before deeming him a deserter and convicted by the Court Marshall, clearly shows the bad faith exhibited by the Defendants, which would rob them of protection by POPA. On exception to POPA by way of ‘continuing damage’, counsel pointed that the Defendant’s continued deprivation of the Claimant of his monthly salaries and emoluments amounts to continued damage or injury which takes this suit outside the general provisions of POPA. Counsel cited and relied on the Supreme Court case of Attorney-General of Rivers State v. Attorney-General of Bayelsa State & Anor [2013] 3 NWLR (Pt.1340)123@148, para.G.

Counsel further pointed that failing to produce the records of the Claimant, the Defendants have acted in bad faith and, such amounts to withholding evidence, and urged the court to hold it against the Defendants, citing and relying on SPDC (Nig) Ltd v. Tiebo (incomplete citation); UBA Ltd v, Ibhafidon [1994]1NWLR)(Pt.318)90 @119; Ogwuru v. CCB [1994]8NWLR(Pt.365)685; Towolawi v. Salpem SPA (2003)34 WRN 35.

Counsel finally urged the court to resolve the issue in favour of the Claimant and hold that the suit is not statute-barred, as the pleadings disclose that there are circumstances that presented exceptions to application of POPA against the Claimant’s suit.

On Reply on point of Law, the Defendants’ counsel filed and served a Written Address on Point of Law dated 8^th May 2018 together with an 11-paragraph Affidavit Reply to Counter-Affidavit sworn to on 10^th May 2018, by the same Valentine Oforka; counsel with the Defendants’ Solicitors. Counsel insisted that the case is statute –barred going by the time of cause of action and the time of filing the suit. He cited and relied on Maj. G.I.O McDonald (rtd.) v. UNN & Anor (2015)62 NLLR 802 @823-824 para. G –F, Per A.Ibrahim , J of NICN Enugu Div. ( now of blessed memory).

Being a matter to be determined pursuant to Or.18 R,2(2)(3) NICN (CP ) Rules 2017, both the Preliminary Objection and the Substantive Suit were heard together and Ruling on the Preliminary Objection deferred to be delivered with the Judgment of the Suit. On that note, trial of the suit commenced after the hearing of the Preliminary Objection.

THE SUBSTANTIVE SUIT:

At the trial proceedings of 19^th July 2018, the Claimant opened his case and testified for himself as CW. He adopted his Witness Statement on Oath of 19^th April 2018 made further to his Amended processes. CW tendered 5 Exhibits, admitted in evidence and marked as Exhibits CA1-CA5 (described as in the Claimant’s List of documents dated 19^th April 2018).

Going by the Claimant’s pleadings and testimonies at the trial, the Claimant’s case is that he was enlisted in the Nigerian Army in August 1980 and trained at the Nigerian Army Depot Zaria where he passed out in 1981 with Regimental number 79/NA/3210, and served as an Artillery Personnel with the Disbanded 311FD Artilery Regiment Epe Lagos, 31 FAB Epe. That sometime in 1997, he obtained a 3 day pass to enable him go home and take care of his sick brother and take him to a Hospital in Ikeja. Incidentally, while he was going to his brother’s house in Shangisha Estate at about 8pm, he was involved in a fight with Vigilante group over refusal to grant him access to the Estate. The fight led to a frame-up charge by the Police against him in Magistrate Court, wherein he was remanded in Kirikiri Maximum Prison and he stayed for 7 ½ years without trial. His salary was stopped from August 1997 and he did not receive any salary all through his detention period. And that he was released by intervention of one Barrister Isaac Boro who represented him in the Magistrate Court and the Charge was struck out by the Presiding Chief Magistrate Femi-Segun in a Ruling delivered on 1^st November 2004 (tendered as exh. CA4). When he was released, he discovered that his Military unit has been disbanded and all personnel reposted to different units. He later, by a letter dated 19^th October 2011, through his Solicitors, Iwuanyanwu & Co, wrote to the Defendants and narrated his ordeals and requested that he should be reinstated in the service (exh.CA1). He again wrote personally and sent through courier another two sets of letters inFebruary 2013(exhs.CA3 and CA4), but none was acknowledged or attended to.

CW maintained that he is still military personnel and prayed for the court’s intervention to recover his accumulated salaries, standing to the tune of N732, 000 as at November 2017, when out of frustration, he instituted this suit.

CW was cross-examined by the Defendants’ counsel, and he closed his case.

Thereafter, the Defendants opened their defence to the suit and called one Defence Witness (DW), in the person of Maj. Diepiriye Biambo, the Acting Deputy Director, 81 Div., Nigerian Army, Legal Services, Victoria Island, Lagos. DW adopted his Witness Statement on Oath of 29^th March 2018 as his evidence-in –chief for the Defendants. He did not tender any document as exhibit.

Gleaning from the defence processes and testimony of the DW, the Defendants maintained common grounds on the case of the Defendant, but contended that by operation of Military Law, the Claimant has been declared a deserter having been Away Without Leave (AWOL), and deemed to have been convicted by the Court Marshall when his 3 days Pass expired and after some period he was still not back to duty. DW explained that the rules applicable to all ranks including the Claimant who was subject to Military Law, is that after 7 days of absence he was declared AWOL, and after 21 days he was declared a ‘Deserter’, and after another 21 days of absence, he is deemed to have been convicted by a Court Marshall and Dismissed from the services of the Armed Forces of Nigeria. DW stated the Claimant’s absence after those periods was made the Defendants to stop his salary and that was done in compliance with the law and rules guiding employment of the Claimant. DW further testified that as at the time he was released in detention in 2004, Claimant was already deemed to have been convicted by the Court Marshall, and that he ought to commence the suit within three months of his deemed conviction and dismissal.

DW was cross-examined and the Defendants case closed, upon which
Final Written Addresses of both Counsel was ordered to be filed and exchanged.

COUNSEL’S SUBMISSIONS

Submissions by Defendant’s Counsel:

In his Final Written Address dated 30^th July 2018 and filed on 31^stJuly 2018, learned counsel for the Defendant, P.E Okohue, Esq, formulated two issues for determination; one on the preliminary objection and the other on the substantive suit, viz:

Whether the action is maintainable in view of the Public Officer Protection Act LFN 2004 which required an action against Public Officer to be commenced within three months?
Whether the Claimant is entitled to the reliefs sought in his Originating process having regard to the evidence before the court?

On issue (i)- whether the action is maintainable in view of the Public Officer Protection Act LFN 2004 which required an action against Public Officer to be commenced within three months: Counsel repeated his earlier submissions in the Notice of Preliminary Objection. Counsel pointed that the Claimant though was detained and spent 71/2 years in detention, but that after he was released in 2004 his first contact with the Defendants was in a letter dated 18^thOctober 2011 (exh. CA1), and that the suit was commenced in November 2017, outside the 3 months prescribed period under POPA.

On issue (ii) – whether the Claimant is entitled to the reliefs sought in his Originating process having regard to the evidence before the court:Counsel submitted on point of law that by virtue of S.164 Evidence Act, any person who has not been in communication and heard from for 7 years is presumed dead. The Claimant had spent 7 ½ years in detention and had no communication even with his wife whom he had lived with in the Barrack at Epe. Counsel contended that upon release, the expected port of call should be to visit the Army Headquarters, as his unit has been disbanded. Counsel urged the court to uphold the presumption that the necessary procedure and processes were followed before stoppage of his salary and other benefits which were last paid in July 1997, before he left with the PASS and did not return again as expected, and no communication thereafter for long.

Submissions by Claimant’s Counsel:

Learned Claimant’s counsel, Felix Agboronfo Esq., in his 22-page Final Written Address dated and filed on 15^th August 2018, also raised two similar issues for determination, one on the Preliminary Objection and the other on the Substantive suit, as follows:

Whether in the circumstances of this case, the Defendants are entitled to statutory protection from legal action pursuant to Section 2(a) of the Public Officers Protection Act 2004?
Whether the Claimant is entitled to the grant of his claims in this suit?

On issue (i)- whether in the circumstances of this case, the Defendants are entitled to statutory protection from legal action pursuant to Section 2(a) of the Public Officers Protection Act 2004: Counsel adopted his earlier submissions in the Written Address dated 23^rd April 2018 in opposition to the Defendants’ Preliminary Objection. Counsel further canvassed that the only relevant authority on the circumstances of the Claimant’s case would be dealing with exceptions not the application of the general rules of the POPA, which were the authorities relied on by the Defendants’ counsel.

Counsel maintained that much as the suit was commenced outside 3 months, it is alive as the Defendants acted without legal justification in not following due procedure in deeming the Claimant dismissed. Counsel cited and relied on Hassan v. Aliyu [2010]17 NWLR (Pt.1223)547 @ 591, para.B-C as well as the new case of Kwara State Pilgrims Welfare Board v. Alhaji Jimoh Baba [2018]9NWLR (pt. 1623) 36@ 47 , para.C-D, wherein the Supreme Court per Bage JSC, restated the apex court’s earlier position in Nwankwere v. Joseph Adewunmi (1966) All NLR 119 @ 124, to the effect that POPA is designed to protect public officer who acts in good faith and does not apply to acts in abuse of office and with no semblance of legal justification. Counsel submitted that in absence of a report by a duly convened Board of Inquiry,as provided for in S.173(2)AMA, the Defendants could not validly dismiss the Claimant after his deemed conviction by the Court Martial. Counsel argued that by virtue of Ss.60 (1) (2) (3), 119(1) AMA, which provides a range of sentence to be imposed on a convicted Army personnel by the Court Martial, the fact that a conviction was secured does not automatically to dismissal. Counsel submitted that even the due procedure set out in Ss.59, 60,123, 124(1) and 173 AMA were not followed in declaring the Claimant AWOL or a Deserter. Consequently, the Claimant can only be validly dismissed if the due procedures were followed.

While adumbrating on his submission at the proceedings of Adoption of Final Written Address on 23^rd November 2018, learned counsel urged the court to so hold that the case fall outside the general rule of POPA. Counsel cited and relied on Amao v. Civil Service Commission [1992]7NWLR (Pt.252)214 @ 228-229, para.E-D.

On issue (ii) –whether the Claimant is entitled to the grant of his claims in this suit: It isCounsel’s submission that the Claimant has proved his claims on balance of probability and, thus has discharged the burden of proof on him, as Claimant in line with S.134 Evidence Act. He pointed that by the testimony of DW, the only reason the Claimant’s salaries and benefits were stopped was because of his deemed conviction and dismissal, which did not follow the due statutory requirements, even when the Claimant’s employment is one of such employment that is protected by statute. Counsel argued that the Claimant is not only entitled to reinstatement but also for payment of all outstanding emoluments during the entire period during which his employment was terminated. He cited and relied on Shitta-Bay v. Public Service Commission [1991]1SC40; Olaniyan v. University of Lagos [1985]2NWLR (Pt.9)599; Saibu v. Kwara State Polythechnic, Ilorin (2008) LPELR-4524(CA); Iderima v. Rivers State GSC (2005)7SC (Pt.111)135.

Counsel finally urged the court to uphold and grant all the Claimant’s reliefs.

COURT’S DECISION

I have carefully followed the proceedings; keenly watched the Witnesses testify and noted their demeanors, as well as evaluated the evidence testified and tendered as exhibits in the proceedings, and have read and intensively reviewed the processes filed and exchanged by the parties and the submissions canvassed in the Final Written Addresses filed and exchanged by respective Counsel in advancing the case of the parties.

Both Counsel adopted common issues though differently formulated for determination in their respective Final Written Addresses, and canvassed theirrespective versions of arguments on the two issues bordering on the Preliminary Objection and the Substantive Suit.

I also adopt the same issues and would proceed to determine them for the resolutions of the contentions in dispute by the parties. The two issues raised for determination are:

Whether given the facts and circumstances of this suit, it is not statute barred and court lacks jurisdiction to entertain same?

Whether the Claimant has proved his case against the Defendants to be entitled to grant of his claims by the court?

The Issue (1) borders on the Notice of Preliminary Objection whichinnocuously challenges the jurisdiction of this court to hear and determine the Claims in this suit; the action having been commenced outside the 3-month statutory period set out under S.2(a) POPA.

Whereas the Defendants’ counsel contended that the suit is caught by the provisions of S.2(a) POPA, and therefore non-justiciable and liable to be dismissed, it is the Learned Claimant’s spirited contention that though the suit was commenced outside the 3-month prescribed timeline under S.2(a) POPA, but that the suit still survives , as the facts and circumstances of the suit fall outside the general rule of statute bar, and constitutes an exception.

There is no doubt that the issue bordering on jurisdiction of court is a radical one and always occupies a pride of place in the proceedings towards addressing of issues raised for determination for effectual resolution of the matter in dispute between the parties before the court. For if it comes to the fore that the court lacks jurisdiction to hear and determine a suit pending before it, that is the end of the judicial exercise of power in entertaining the suit and the rest of the issues awaiting determination abate forthwith, having lacked foundation to rest upon and anchor judicial efforts for valid resolution of the matter in dispute.

On that note, I proceed to first determine issue (i) on the Preliminary Objection. Both parties are in tandem with the fact that the suit was commenced outside 3 months of the cause of action. What is however in contention is as to the applicability of the general rule or if any exception avails the Claimant? Thus, the principal issue to determine here is whether any of the known exceptions to the general application of the rule on statute of limitation avails the Claimant?

As pointed earlier, it is Claimant’ counsel’s firm contention that the general rule of limitation of action set out under S.2(a) POPA is not absolute and admits of exceptions, such as where the public officer acted ‘outside the colour of office’ or ‘bad faith’ and that POPA does not apply to contracts of employment, and cases of ‘continued damage’ also constitutes an exception to general application of POPA . To buttress his point, counsel cited and relied on a number of cases on the exceptions to application of POPA (earlier reproduced).

As the presence or otherwise of any of such exceptions is a question of fact of the surrounding circumstances, an inquiry to unravel the evidence to establish any of such exception led to delving into the substantive suit, otherwise, the matter would have been dealt with at the preliminary level of the objection by normal arithmetical computation of time between the cause of action and the filing of the suit by gleaning on the originating process filed by the Claimant. See: Ezeani v. Nigerian Railway Corporation [2015]3NWLR (Pt.1445) 139 @ 166, paras.D-G, per Pemu JCA.

Let me first dispel the erroneous submission by the Claimant’s counsel that the statute of limitation, i.e the POPA does not apply to employment contract. The extant position of law is that the limitation statute applies with equal force to employment contract but that in case of continuing injury, such as withholding salary while the person is in employment, the limitation statute will not apply, as that constitutes an exception to applicability of the general rule.See: Hon. Runyi Kanu (JP) & Ors. v. The Attorney-General & Commissioner for Justice Cross River State & Ors. (2013)32 NNLR (Pt.91)63NIC.

Claimant’s counsel made spirited efforts to anchor the survival of the Claimant’s case on any of the established exceptions to statute of limitation. He relied on ‘continued injury/damages’. However, a snag to applicability of that exception laid down by the Supreme Court in AG, Rivers State v. AG, Bayelsa State [2013]3NWLR (Pt.1340)123@144-150, is that the deprivation of periodic entitlement has to be subsisting and same should not have ceased to qualify as ‘a continuance of damage or injury which has not ceased’. In other words, the employee Claimant would need to be in employment. Thus, once the employment ceases, the employee ought to bring an action within 3 months thereof, to keep his suit alive and effective in court, otherwise it becomes statute-barred and ineffectual.

The Claimant also relied on the latest Supreme Court case of Kwara State Pilgrims Welfare Board v. Alhaji Jimoh Baba [2018]9NWLR (pt. 1623) 36on an exception bordering on bad faith / acting outside the ‘colour of office’ i.e acts done without legal justification. I have read this latest authority on the issue, yet struggle to see how it applies to the circumstance of the Claimant’s case. Courts are not blind followers of precedents, which ratio decide ought to be reviewed and reconciled with the facts and circumstances of the case at hand to be applicable and binding.

Counsel had led evidence to show that the declaration of the Claimant as an AWOL, ‘Deserter’ and subsequent deemed conviction and dismissal did not follow due process in that the Defendants did not set up any Board of Inquiry or got a report of any recommended punishment for the Claimant’s said desertion as stipulated in the relevant provisions of the Armed Forces Act (AMA). The Claimant again, seem to overlook the fundamental point in issue here, which is the time lag between when the Claimant was released from detention in November 2004 and when he instituted this action in November 2017 (a period of about 13 years), given that he also spent 71/2 years in detention (1997-2004) without any communication to anybody, including family members.

The circumstance of his disappearance and arrival (as explained in the frame-up charge in the Magistrate Court) still left a nagging question, as to why the Claimant did not immediately report to the Defendant to explain himself upon release from incarceration. Claimant’s testimony that his Unit has been disbanded also supports the imperative of the need for his quick visit to the Defendants’ Army Headquarters. Such quick visit would have aided his possible reposting and review of his pitiful circumstances, even if adverse decision had been made in his absence, otherwise, a quick suit would be instituted to redress his situation.

Under cross-examination the CW was asked by the lead Defendants’ counsel:

Q: Take a look at paragraph 8 of your Witness Statement on Oath (WSO). You were released on 1^st November 2004. You did not come before this court until 22^nd November 2017, when you filed this action i.e 13 years and 7 months after you were released?

A: Yes. Actually by 2004 when I was released, I moved down to Abeokuta (Alama Barracks) to meet the Brigadier Commander with my Court Judgment at the Magistrate Court (exh.CA4). And he advised me to go back to my lawyer. When I met my lawyer he charged N100,000, of which I could not afford. That was in 2004. It was in 2011 I met another lawyer ( I.B Iwuanyanwu, Esq.) who helped on humanitarian ground to write a letter to the Chief of Army Staff and other Army Officials (exh.CA1-CA3). But there was no reply. It was later in 2017 (November), I met my current lawyer, who helped again under humanitarian ground to file this suit”.

Claimant rather alluded to poverty as reason for his not pursuing legal action since his release from detention, but offered no explanation as to why he did not quickly visit the Defendants ‘Army Headquarters to incident his issues. It would not cost him much to pay such visit. Again, this piece of evidence attracts light weight given the expectation from him to take a major step on his career issue even if it means soliciting for assistance from official Legal Aid Organizations or individuals anywhere in Nigeria, particularly the Legal Aid Council of Nigeria other similar bodies in States Ministry of Justice, such as the Office of Public Defender (OPD) in Lagos State and other Human Right lawyers and Pro Bono Legal Services providers avalanche in Lagos State.

Of note is the cost of litigation in the relevant court (NICN), which is very low and ought not to arm-twist the Claimant or any assisting person. After all, eventually, the Claimant still came to the court in November 2017, and now grappling with the objection threatening the substance of his perceived legal right with the harsh effect of the successful plea of statute bar.

In Ajayi v. Adebiyi [2012] 11 NWLR (Pt. 1310) S.C. 137@ Pp. 196-197, paras. G-B,(Ajayi’s Case),the Supreme Court elucidated on the essence of statute of limitation thus:

“A statute of limitation of action is designed to stop or avoid a situation where a plaintiff can commence action anytime he feels like doing so, even where human memory would normally have faded and therefore failed. Put in another language, by the statute of limitation, a plaintiff has not the freedom of the air to sleep or slumber and wake up at his own time to commence an action against a defendant. The different statutes of limitation which are essentially founded on the principle or equity and fair play, will not avail such a sleeping or slumbering plaintiff”.

In the Ajayi’s Case (Supra) @ P. 172, paras. B-E, the apex court went ahead to lay the effect of statute-barred on a pending suit, thus:

“Where an action is statute-barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process, because the period of time laid down by the Limitation Law for instituting such an action had elapsed and the right to commence the action would have been extinguished by law”.

See also: AG, Adamawa State v. AG, Federation [2014]1NWLR(Pt.1428)SC ; Lafia LG v. Gov. Nasarawa State [2012]17NWLR (Pt.1328)94SC; Sulgrave Holdings Inc. v. FGN [2012]17 NWLR (Pt.1329)309SC; Adigun v. Ayinde [1993] 8NWLR (Pt.313)516; Emiator v. Nigerian Army [1999] 12 NWLR (Pt. 631) 362; Ekeogu v Aliri [1991] 3 NWLR (Pt. 179) 258; Permanent Sec; Ministry of Works, Kwara State v. Balogun (1975) 5 SC 57; Ibrahim v. JSC [1998 14 NWLR (Pt. 584) 1; Offoboche v. Ogoja L.G. [2001] 16 NWLR (Pt. 739) 458; Egbe v. Adefarasin (No.1) [1985] 1 NWLR (Pt. 3) 549; Obiefuna v. Okoye (1964) 1 All NLR 96.

In a concerted search for the time of accrual and cessation of the cause of action for the purposes of application of the limitation statute, I find from the evidence on record, thatthe Claimant last received salary in July 1997, even if the period he was in detention is to be excused (August 1997 to November 2004), time would normally start to run after his release from prison in November 2004 and expires within 3 months thereafter. Thus, such action should have normally been commenced latest in February 2005, but it was commenced in November 2017, a period of about 12 years after the cessation of the cause of action. I therefore, find that the suit is caught up by the limitation provisions of S.2 Public Officers Protection Act (POPA). Accordingly, this suit is statute-barred.I so hold.

Where a court comes to the finding that the suit before it is statute barred, the legal consequence is that of dismissal. See: NPA v. Lotus Plastics Ltd & Anor [2005]19 NWLR (Pt.959) 158. In the circumstance, this case is liable to be dismissed. It is hereby dismissed. I so hold. Having so dismissed this suit based on the preliminary objection, the issue bordering on the substantive issue also submitted for determination (issue2) hereby abates as I find no further jurisdictional competence to pronounce further on it. I so hold.

Judgment is entered accordingly. I make no other as to cost.

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HON. JUSTICE N.C.S OGBUANYA

JUDGE

08/02/19