ILIYA ENOCH (HAIX7131) VS THE CHIEF OF NAVAL STAFF & 2 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

22^ND DAY OF FEBRUARY 2018

SUIT NO. NICN/ABJ/273/2017

BETWEEN:

PROF. ILIYA ENOCH (HAIX7131)

CLAIMANT/RESPONDENT

AND

THE CHIEF OF NAVAL STAFF
THE NIGERIAN NAVY
THE HON. MINISTER,

MINISTRY OF DEFENCE

DEFENDANTS/APLICANTS

RULING/JUGMENT:

The Claimant approached this Court via a complaint dated 13^th day of September 2017 and filed on the 15^th day of September 2017, seeking for the following reliefs:-

A DECLARATION that the purported termination of the Claimant from work vide Letter titled “NOTIFICATION OF RETIREMENT” dated 18^thMarch 2015 is wrongful and contravenes section 36(1) of the Constitution of the Federal Republic of Nigeria (1999) as amended as well as the rules of natural justice and equity.
AN ORDER setting aside the purported Letter titled “NOTIFICATION OF RI:TIREMENT” dated 18^th March 2015 for being wrongful, extra-legal, unlawful, malafide, null and void and of no effect and recalling/reinstating the Claimant back to his office.
AN ORDER directing the Defendants to pay to the Claimant all outstanding arrears of his salaries, emoluments and all pre-requisites attached to the Claimant’s office immediately.
AN ORDER OF INJUNCTION restraining all the Defendants, their agents and privies howsoever from annoying, inconveniencing, over-awing. restricting, insulting, harassing, intimidating or in any way infringing on the Fundamental Rights of the Claimant.
Cost of filing this suit and prosecuting this action as well as Legal costs.

Upon being served with the originating Court processes commencing this suit, the 1^st and 2^nd Defendants vide motion on notice dated 7^th day of November 2017 and filed on the same day, seeking for:

An order of this Honourable Court dismissing this case for being statute barred.
Any other Order(S) as this Honourable Court may deem fit to make in the circumstances of this case.

The grounds upon which this application is brought are as follows:-

The cause of action in this suit arose on the 18^th day of March 2015.
The Claimant did not institute this action until the 13^th day of September 2017, a period of about two and half years after the cause of action has arose.
This case is statute barred and this Court lacks the jurisdiction to hear the case.

In the affidavit in support of the motion on notice it was stated that the cause of action in this suit arose on 18^th day of March 2015, but the Claimant did not institute this action until 13^th day of September 2017, a period of about 2 ½ years after the cause of action arose. It was also stated that the 1^st and 2^nd Defendants are public officers against who no action can be instituted against them after three Months from the date cause of action arose. The Claimant/Respondent did not file counter-affidavit to the affidavit in support.

On 11/1/18, this application came up for hearing before this Court, wherein Mr. Eta Effiom, Counsel for the 1^st and 2^nd Defendants urged the Court to dismiss this action for being statute barred. Counsel informed the Court that the motion on notice is supported by a six (6) paragraphs affidavit. Counsel relied on all the paragraphs of the affidavit. Counsel also informed the Court that a written address was filed along with the motion on notice. Counsel adopted the written address as his argument. Counsel also informed the Court that he has filed a reply on point of law. In the written address Counsel identified a lone issue for determination to wit:

‘‘whether the claimant’s case is not statute barred’’.

ARGUMENT:

In advancing argument In support of the motion, Counsel for the 1^st and 2^nd Defendants/Applicants submitted that the claimant’s case is statute barred. This is because from the statement of claim before this court, the claimant received the notice of retirement on the 18^th of March, 2015, but did not file this case until the 13^th of September, 2017, i.e about 2 ½ years after the cause of action has arose. Counsel further submitted that any action against the 1^st and 2^nd Defendants, being public officers, must come within three (3) months as provided by section 2 of the Public Officers Protection Act. Section 2 of the Public Officers Protection Act. It is the contention of Counsel for the Applicants that contrary to the provision of section 2(a) of the Public Officers (Protection) Act, the claimant did not file this action until the 13^th September, 2017, about 2 ½ years after the receipt of the letter of notification for his retirement. Counsel submitted that this suit is therefore statute barred. Counsel also submitted that the Supreme Court has held in the case of Ibrahim V. Judicial Service Committee Kaduna State (1998) 14 NWLR (Pt 584) 1, that “any person” in section 2 (a) of the Public Officers Protection Act admits and includes artificial persons like the 1^st and 2^nd Defendants. Counsel further submitted that the Supreme Court has held in the case of Udo Trading Co. Vs. Abere (2001) 5 SCNJ 274 at 290 that a defence founded on the statute of limitation is a defence that the plaintiff has no cause of action. It is a defence of law which can be raised in limine and without any evidence in support. Counsel also contended that no Court has the jurisdiction to hear and determine a cause of action that is state barred. On this submission counsel place reliance on the case of Kwara State V. Lafiagi (2005)2 FWLR (Pt 264) 720 at 737 para. F. Counsel also submitted that the Claimant in his Statement of Facts is urging the Court to declare “that the purported termination of the claimant from work vide latter titled “NOTIFICATION OF RETIREMENT” dated 18^th March, 2015 is wrongful”. It is the contention of Counsel that from the above prayer, it is clear that the claimant is challenging his retirement which occurred on the 18^th of March, 2015. And to which he did nothing until the action become statute barred. Counsel urged the Court to dismiss this action for being status barred. Counsel submitted that the action of the claimant filed 2 ½ years after the termination of his employment cannot be revived and this court cannot pry into the conduct of the 1^st and 2^nd Defendants that gave rise to this action. There is therefore no need for the Defendants to file their Statement of Defence. on this submission Counsel relied on the case of EKEOGU V AHIORI (1993) 3 NWLR (PT178) 269. Counsel submitted that in determining cause of action it is the claim of the Claimant that will be looked at. On this submission Counsel relied on Udo Trading Co. Vs. Abere (2001) 5 SCNJ 274, and Samson Owie v. Solomon Ighiwi (2005) 5 NWLR (pt. 917) 184. In concluding his submission Counsel submitted that the cause of action having accrued on the 18^th of March, 2015, about 2 ½ years before this action was instituted, the action is statute barred and urged the Court to dismiss it.

In opposition to this application, the Claimant/Applicant on 15/11/17, filed a written address, wherein Counsel pray this Court not to terminate this suit in limine but rather overrule the said preliminary objection and proceed into the merit of this suit in the interest of justice. Counsel identified lone issue for determination, to wit:

‘‘Whether having regard to the combined effects of the decisions in both NIC vs AMINU (2012) 8 NWLR pt. 1302 p. 330 @ 355-356 paras. F-C and BOB-MANUEL vs. AG. Rivers State (2016) 11 NWLR pt. 1523 p. 364 @ 380 paras. D-E is this suit caught by the provisions of the Public Officers Protection Act Cap. P41 LFN 2010 or the doctrine of Statute Bar at all ?

ARGUMENT ON THE ISSUE

Mr. Bala E. Gwadah, Counsel for the Claimant/Applicant submitted that it is settled Law that there is no law that is absolute. Every rule of law has an exception. It is the submission of Counsel that the Public Officers (Protection) Act Cap. P41 LFN 2010 is not an absolute Law. It has exceptions. Counsel referred to NIC vs AMINU (2012) 8 NWLR pt. 1302 p. 330 @ 355-356 paras. F-C and observed that the Claimant/Respondent brought this suit to claim reliefs against breach of contract of employment with the Defendants. Counsel submitted that this suit being an action against the Defendants in the main for breach of master/servant contractual relations (Labour Law issue) is one of the exceptions to the Law and hence not caught by the provisions of Section 2 of the Public Officers (Protection), in particular or the doctrine of Statute bar in general. Counsel also referred to BOB-MANUEL vs AG. RIVER STATE (2016) 11 NWLR pt. 1523 p. 364 @ 380 paras. D-E. and OSIGWE vs PSPLS (2009) 1 SCNJ p.1 and submitted that it is the writ of summons and the statement of claim that will be looked at in determining cause of action. Counsel submitted that it is by a careful perusal and consideration of the Writ of Summons as well as the Statement of Claim including the witness depositions frontloaded; this Honourable Court will definitely find that the suit of the Claimant/Respondent is not statute barred as erroneously misconceived by the 1^st and 2^nd Defendants/Applicants (with utmost due respect). AG RIVERS STATE vs BAYELSA (2013) 3 NWLR pt. 1340 p. 123 @ pp.148 – 150 paras. F-A. Counsel further submitted in the above cited Case Law, the Supreme Court held that another exception to the Public Officers (Protection) Law is where there is “continuing damage and injury”. The Supreme Court had earlier on pronounced that in a case of continuing damage and injury, a Public officer (i.e. Defendants/Applicants) cannot hide under the cover of Public Officers (Protection) Law to avoid a suit of the Claimant/Respondent against them. Counsel submitted that the Claimant in any event is presently suffering continuing damage and injury in the peculiar circumstance of this suit and the injuries are yet to abate or cease. AREMO 11 vs ADEKANYE (2004) 13 NWLR pt. 891 p. 572 @ 593-594 paras. H-B. it is the contention of Counsel that by a calm perusal of the Claimant/Respondent’s Statement of Claim (Being the proper Legal material which the Law enjoins this Honourable court to carefully and seriously consider alone in determining its jurisdiction) it will be found that considering the facts of this case, the suit of the Claimant actually boils down to seeking reliefs for abatement of “continuing damage and injury” inflicted on him by all the Defendants jointly and severally up to today. Therefore, this exception obliterates the applicability of the Laws relied upon by the Defendants/Applicants seeking to bar the Honourable Court from assuming jurisdiction and entertaining this suit in the circumstance. Counsel urged the Court to hold that the Claimant is perfectly entitled to proceed with this suit to finality in the interest of justice and equity. ANOZIE vs AG FEDERATION (2008) 10 NWLR pt. 1095 p.278. Counsel further pray the Honourable to invoke the doctrine of stare decisis in the light of all the afore cited ex cathedra case Law and find that in the peculiar facts and circumstances of this suit, neither the Constitution nor any other Law provides protective cover for the Defendants as a shield to avoid the consequences of this suit of the Claimant in the interest of justice. KANO vs GOVT, ADAMAWA STATE (2015) ALL FWLR pt. 775 p. 308 pp.336-337 paras. A-F. see also pp.341 – 343 paras. G-C. Counsel contended that all the Defendants simply want is to evade liability by placing reliance on the technicality of Public Officers (Protection) Law to scuttle the hearing of this suit on its merit when they acted outside the colour of their office. (This is also an exception to the applicability of the Public Officers (Protection) Law). AG RIVERS STATE vs AG BAYELSA (SUPRA) @ pp. 148-150 paras. F-A LAMINU vs MAIDUGU (2015) 7 NWLR pt. 1458 p. 289 @ 320 par. C., SECTION 1 (3) and SECTION 6(6)(B) AND SECTION 36(1) CONSTITUTION FRN 199 (AS AMENDED). Counsel pray the honourable court to find that this suit is not statute-barred. Counsel finally urged the Honourable Court to hold that the Preliminary Objection of the Defendants is frivolous, vexatious and an abuse of court process and dismiss same in the interest of justice.

The Counsel for the 1^st and 2^nd Defendants/Applicant in reply on point of law submitted that the contention of the Claimant that Public Officers Protection Act did not apply to contract of employment is based on misconception of law. Counsel submitted that the contract of employment between the Claimant and Defendants as in this case is statutory and public in nature. It is not a mere contract perse.

DECISION:

I have carefully perused the content of the originating processes commencing this suit, as well as the motion on notice seeking to terminate this suit in limine, the affidavit in support and the written submissions of Counsel for both parties. I have equally heard oral argument of Counsel on either sides for and against the grant of this application.

In their respective written addresses Counsel for both parties formulated one issue for determination. For purposes of determining this application I will formulate a lone issue as well, which I feel will determine the issue before this Court. The lone is:

‘‘whether this suit has been caught by section 2(a) of the Public Officers Protection Act to deny the Claimant right to enforce his cause of action’’.

For proper understanding of the issue for determination it is apt to reproduce the provision of Section 2(a) of the Public Officers Protection Act. It read as follows:-

‘’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 –

the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof’.

The provision of section 2 (a) of the Public Officers Protection Act, reproduced above which is the basis of this application is a statute of limitation that was enacted to make institution of action against public officers with dispatch failure to promptly institute an action within the time frame of three months period as provided in the Act will extinguished the right of the Claimant to pursue his cause of action. The provision is on principle of law requiring the claimant as a matter of obligation to seek prompt remedy for the breach of his right in a Court of Law within the time limited by the law otherwise his right of action or cause of action becomes stale and unenforceable at the expiration of the period of limitation i.e period allowed for commencing an action by the law. So where the law provides for the bringing of an action within a prescribed period in respect of a cause of action accruing to the claimant, proceeding shall not be brought after the prescribed period by law. See ADIGUN VS AYINDE (1993) 6 NWLR (Pt.313) 516, ANOZIE VS AG FEDERARATION (2008) 10 NWLR (PT.1095) 278 @290-292.

In his argument in support of the motion, Counsel for the 1^st and 2^nd Defendants/Applicants submitted that by virtue of section 2(a) of Public Officers Protection Act the claimant’s case is statute barred. Counsel further submitted that any action against the 1^st and 2^nd Defendants, being public officers, must come within three (3) months as provided by section 2(a) of the Public Officers Protection Act. It is the contention of Counsel for the Applicants that contrary to the provision of the public officers protection Act, the claimant did not file this action until after 2 ½ years after the receipt of the letter of notification for his retirement. Counsel also submitted that the Supreme Court has held in the case of Ibrahim V. Judicial Service Committee Kaduna State (1998) 14 NWLR (Pt 584) 1, that “any person” in section 2 (a) of the Public Officers Protection Act admits and includes artificial persons like the 1^st and 2^nd Defendants. Counsel further submitted a defence founded on the statute of limitation is a defence that the plaintiff has no cause of action. It is a defence of law which can be raised in limine and without any evidence in support. It is sufficient if prime facie the dates taking the cause of action outside the prescribed period are disclosed on the writ of summons and statement of claim. Counsel urged the Court to dismiss this suit for being statute barred. The Learned Counsel for the Claimant/Respondent in his submission contended that it is settled Law that there is no law that is absolute. Every rule of law has an exception. It is the submission of Counsel that the Public Officers (Protection) Act is not an absolute Law. Counsel submitted that the Claimant’s action is not caught by the provisions of the Public Officers Protection Act, in that the suit falls within the exceptions. Counsel submitted that the action is on breach of contract of employment which is within the exception. Counsel also submitted that the action is for abatement of “continuing damage and injury” which is also within the exception. Counsel further pray this Court to invoke the doctrine of stare decisis in the light of all the afore cited ex cathedra case Law and find that in the peculiar facts and circumstances of this suit, this suit is not statute barred. Counsel also contended that all the Defendants simply want is to evade liability by placing reliance on the technicality of Public Officers (Protection) Law to scuttle the hearing of this suit on its merit when they acted outside the colour of their office. (This is also an exception to the applicability of the Public Officers (Protection) Law). Counsel pray the honourable court to find that this suit is not statute-barred and urge for an Order to proceed to hear the case on the merit in the circumstance. Counsel finally urged the Honourable Court to hold that the Preliminary Objection of the Defendants is frivolous vexatious and an abuse of Court process and dismiss same in the interest of justice.

The non filing of counter-affidavit by the Claimant to counter or contradict controvert the affidavit in support of this motion is a pointer to the fact that the Claimant has accepted and admitted the averments contained in the affidavit in support of this motion as truth of the facts deposed therein. Now, it is obvious from the submission of Counsel for the Claimant that this action has not been brought within three months following the act complained of i.e retirement of the Claimant from service as per notification of retirement dated 18^th day of March 2015. What the Claimant is contending here is that section 2(a) of the Public Officers Protection Act is not applicable to his case, because his case was on contract of employment and there is continuing damage or injury which is yet to abate. And that the objection based on section 2(a) is a technical in nature so as to defeat justice.

I shall now first deal with the defences/excuses given by Counsel for the inapplicability of the statute of limitation to this case before determining the main application.

The Counsel for the Claimant/Respondent placed heavy reliance on: NATIONAL INSURANCE COMMISSION VS SHEHU AMINU (supra), BOB-MANUEL V AG RIVERS STATE (Supra) and AG RIVERS V BAYELSA GOVERNMENT (Supra), to submit that these cases have made section 2(a) of the Public Officers Protection Act inapplicable in this case.

I have thoroughly examined the cases and found them in applicable to this case. The case of NIC Vs Aminu (supra), deals with contract of service and not contract of employment. The issue in that case was on issue of entitlement of estate agents to payment of commission for finding suitable accommodation for use as office by the National Insurance Commission, the Court of Appeal in that case held that application of section 2(a) of the Public Officers Protection Act did not extend to contract entered into by Government agencies. To determine whether Pubic Officers’ (Protection) Act is applicable to a particular employment, regard has to be had to distinction between a contract which is simple and specific or special. This would entail determining whether parties had freely agreed to the terms of the relationship between them; that is, a contract of employment bordering on master servant relationship; or whether the employment has statutory flavour or involves the performance of public duty by public institution as protected by the provision of the law. The former being a simple and specific contract, the application of Public Officers (protection) Act is excluded and claim could be filed in court after three months period of the happening of an event. But, the latter situation that is, a contract of employment with statutory flavour or the discharge of day to day function of a public officer, attracts the application of the protection of the Act. In the instant case the Claimant was retired from service by the Defendants, who are public officers in the exercise of public duty. See MUSA Vs NIMR (2010) 5 NWLR (Pt 1205) 271. In view of the foregoing it is my humble view that the application of section 2(a) of the Public Officers Protection Act is not excluded in this case since the contract is not a simple specific contract freely and willingly entered by the parties.

On the issue of continuing injury, the Claimant relied on the case of AG RIVERS Vs BAYELSA GOVERNMENT to submit that continuing damage or injury is an exception to this case. I have thoroughly examined the case being relied upon by Counsel and found that it is not applicable in this case. The facts of that case and this case are not on all fours, they are distinguishable the case being relied upon deal with issue revenue allocation which is due on Monthly basis, the monthly accrual made it continuous damage or injury. But in the present case it deal with retirement which was effected on 18/03/2015. In INEC V OGBADIBO LOCAL GOVERNMEMT & ORS (2015) LPELR-24839 (SC), the apex court define continues injury as ‘‘continuous or repeat of the act which cause the injury. It does not and cannot be said to mean the concomitant effect of the damage or injury. Applying the definition of countenance of damage or injury as proffered by the Supreme Court to this case, it will be clear as day light that there was only one notification of retirement dated 18/03/2015 and that is what the Claimant is contesting as per his paragraphs 15 and 21 of the statement of facts. What the claimant termed as continues injury is not as such. Rather, it is continuance of the injurious effect of the act of retirement. In the circumstance there is no continuance of injury in this case as there was only one retirement. The doctrine of continuous injury does not apply in this case.

Now, I turn to the issues of technicality, the Claimant has submitted that the Defendants are by this objection trying to evade liability by raising issue of technicality. The Courts are now moving away from technicality, the Rules of Courts have enjoined doing substantial justice. However, it must be pointed out here that substantial justice means doing justice in line with due process of law and not in accordance with whims and caprices. Where a statute has provided following a particular course that course must be followed otherwise anything done in violation of the statutory provisions will amount to nothing. Raising of objection on ground of non compliance with section 2(a) of the Public Officers Protection Act cannot by any stretch of imagination amount to technicality. A technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the parties of a case. It is use of available opportunity, however, infinitesimal it may be, to work against the merits of the opponent’s case. That to holds and relies tenaciously unto the rules of court with little or no regard to the justice of the matter. YUSUF V ADEGOKE & ANOR. (2007) LPELR-3534 (SC) (2007) 11 NWLR (PT.1045) 332, BWACHA V IKENYA & ORS (2011) LPELR-8105(SC)

Having dealt with the defences raised by the Claimant, I shall now proceed to consider the main application.

For the provision of section 2(a) of the Public Officers Protection Act to apply, it must be established that:

The applicants are public officers

The act complained of was done by public officer in acting in pursuance or execution or intended execution of any law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority.

As earlier pointed out, the Claimant instituted this action for period of more than three Months from the occurrence of the act complained of (Retirement) of the Claimant from the services of the Defendants.

The question now to ask is are the Defendants in this case Public Officers. The case of IBRAHIM V JUDICIAL SERVICE COMMITTEE (1987) has settled this issue that the word ‘any officer’ in section 2(a) of the Public Officers Protection Act of the Northern Nigeria which is impairi material with section 2(a) of the Public Officers Protection Act (federal). The term public officer is not limited to only natural persons or human beings. It admits and includes artificial persons such as corporation sole, company or anybody of persons corporate or incorporate. The Defendants in this case going by the definition of public officers as provided by the Supreme Court are without any fear of contradiction public officers. I therefore hold that the Defendants are public Officers.

The next question is whether the Defendants were acting in pursuance of or execution or intended execution of any law or of any duty or authority? To answer this question the averments in the statement of claim have to be closely examined to be able to find an answer to this question. For this purpose I refer to paragraphs 12 to 17 of the statement facts which to my mind abundantly show that the acts complained off were in pursuance or in execution public duty. The claimant has stated he was falsely accused of being absent without official leave when he did not attend the passing out parade upon completion of the course/military training at NNS Quorra and was subsequently arraigned and summarily tried in a military court. The claimant was after trial found liable and consequently disrated in accordance with military law. The rating of the Claimant was restored after losing four years seniority of rank compared to his contemporaries. After restoration of rating the Claimant was posted to Nigeria Defence Academy Kaduna, while he received signal to report for discharge routine, which he complied. The letter of retirement dated 18^th day of March 2015 was pleaded. The claimant alleged the purported retirement was not voluntary. But when he inquired why he is being retired he was told due to absence without leave.

It is clear from the statement of facts that the acts being complained of are acts of public officers in the discharge of their official functions.

What remain is to see whether this action was instituted within three months next after the cause of action has arose. The statement of facts and the endorsement on the complaint will now be considered to see whether the action is within the period of limitation or not. The endorsement on the complaint as well as paragraphs 15 and 20 of the statement of facts clearly shows that the retirement from service which the Claimant is seeking this Court to declare wrongful was done on 18^th day of March 2015 and this complaint was filed at the Registry of this Court on 15^th day of September 2017. This means that this action was instituted two years six Month minus two days after the accrual of the cause of action. This is without any fear of contradiction outside the statutory period allowed by section 2(a) of the Public Officers Protection Act for institution of action against public officers in respect of performance of their official duties.

In view of the reasons given above I hold that this suit is statute barred and it is hereby dismissed.

I award no cost.

Sanusi Kado,

Judge.