IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE (Dr.) I.J. ESSIEN
DATE: 14th February, 2019
SUIT NO: NICN/LA/130 /2017 ·
BETWEEN
LIEUTENANT YAHAYAT, YAKUBU Claimant
AND
- THE NIGERIAN NAVY
- THE NIGERIAN NAVY BOARD Defendant
- CHIEF OF NAVAL STAFF
REPRESENTATION
A.I. Ofordume Esq, for the claimant.
- J. Jakpa Esq, for the defendant.
JUDGEMENT
The claimant in this suit by an originating summons dated the 17/2/2017 and filed on the 20/3/2017 sought the determination of the following questions from this court;
1) Whether the claimant in this suit, who was the appellant in Appeal No. CA/C/129/2001 in Lt. Y. T. YAKUBU v. CHIEF OF NAVAL STAFF&. 2 ORS, is not entitled to be re-instated by the defendants to his pre-trial status in the Nigerian Navy based on the Judgment of the Court of Appeal delivered on Thursday the 15th day of May 2003 in Suit No. CA/ C/ 129/2001 herein above stated.
2) Whether the defendants in this suit are not bound, having regard to the above judgment of the Court of Appeal, to re-instate the claimant into the Nigerian Navy and restore his rights and privileges including the payment of his arrears of salaries and allowances as well as all his accrued benefits from 17 May 2003 till the date his employment is lawfully determined in accordance with the terms and conditions governing his employment with the Nigerian Navy, including his promotion to the rank befitting his status, experience and seniority in the Nigerian Navy.
On the determination of these questions the claimant sought the following relieves;
1) AN ORDER compelling the defendants to re-instate the claimant into the Nigerian Navy With effect from the date of his purported retirement without any loss of seniority, having regard to the Court of Appeal’s nullification of his trial by a General Court Martial and an order of discharge and acquittal entered in his favour by the said Court Of Appeal in Appeal No. CA/C/129/2001.
2) AN ORDER compelling the Nigerian Navy to restore to the claimant all the consequential service rights, privileges and entitlements due to him including his salaries, allowances, and other accrued benefits since May 2003 when he was unlawfully retired including his promotion to the appropriate rank befitting his status, experience and seniority till the date his employment is determined within the provisions of the Constitution, the statute and the Terms and Conditions of Service applicable to his employment with the Nigerian Navy having regard to the judgment of the Court of Appeal in Appeal No. CA/C/129/ 2001.
On the 5/12/2017 when the matter come up for hearing, my learned brother Hon. Justice B. B. Kanyip raised the issue of statute barred in view of the circumstances of this case and ordered counsel for the parties to address him on the sustainability of this suit in view of the provisions of section 2(a) of the Public Officers Protection Act. The claimant filed their written address on the 30/5/2018 and the defendant filed their written address on the 4/6/2018. The issue raised by my learned brother being an issue which goes to the competency of this suit and thus the jurisdiction of this court to continue to entertain this suit must be decided first.
In his written address the defendant counsel argued that any action or proceedings commenced against any person for any act done in pursuance or execution of any act, law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such act or law, duty or authority shall be brought within three months of the act, neglect or default complained of. He relied on the provision of section 2(a) of the Public Officers Protection Act. He relied on the case of See IBRAHIM VS. JSC (1998) 14 NWLR (PT 584) Page 1.
He argued further that the defendants are public officers within the meaning of section 2(a) of the Public Officers Protections Act, and the provisions of section 18 of the Interpretation Act of 1964 CAP 1, 23 LFN 2004. He relied on the case of See CBN VS ADEDEJI (2004) 13 NWLR (Pt. 90) Pg. 226 and Ibrahim vs, JSC ‘supra’
Counsel argued that the course of action in this suit arose on the 27/11/2003 when the claimant was compulsorily retired from the services of the defendant and that this action was filed on the 4/5/2016. He argued that from when the cause of action arose to when this suit was filed, a period of 12 years and 6 months have expired. He also argued that when an action has become statute barred it has an effect on the jurisdiction of the court in that it robs the court of jurisdiction to determine the case. He cited the case of NDIC VS. O’SILVAWAX INTERNATIONAL LIMITED (2006) 7 NWLR (PT. 980) PAGE 588 at 611 . He finally stated that the appropriate order the court has to make in the circumstances is an order dismissing the suit. See UNITY BANK PLC VS. NWADIKE (2009) 4 NWLR (PT 1131) PAGE 325 at 381, YAKUBU VS.NITEL LTD {2006) 9 NWLR (PT 985} Pg 367 at 375, N.1.1.A .VS. AYANFALU (2007) 2 NWLR (PT 1018) 246.
On the other hand the claimant counsel in his written submission filed in this court on the 30/5/2018, argues that the provision of section 2(a) the Public Officer Protection Act does not apply where a public officer abuse his office, he cited paragraph 9 of the 5th schedule to the Code of Conduct for Public Officers as contained in the 1999 constitution. It is his argument that the letter of compulsory retirement of the claimant from service of the 1st defendants dated 27/11/2003 was an attempt to review the decision of the Court of Appeal in Appeal No CA/129/2001 which discharged and acquitted the claimant of the criminal conviction by the Court Martial conducted by the defendants. He argued that abuse of office, bad faith, acting without legal justification or acting maliciously by a public officer or body, would deprive that officer or body, the privilege of being protected by the Act. He argued that by issuing the letter of compulsory retirement the defendant engaged in a review of the decision of the Court of Appeal. That the act of the defendant amount to an abuse of public office. He relied on the case of OFFOBOCHE V OGOJA LOCAL GOVERNMENT & ANOR (2001) 16 NWLR (Pt 739) 458@ 485 the Supreme Court, per Ayoola JSC held that ‘Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of section 2(a) of the Public Officers Protection Act. He also relied on the case of EGBE V. ADEFARASIN [1985] 1 NWLR (Pt 5) 560. The defendant in the second leg of his argument on page 7, 8, and 9 of his written address has sought to argue that the person who signed the letter of compulsory retirement had no power to sign or convey the decision of the navy board and as such the letter is void. This argument to my mind is off the rail. It does not address the issue of statute barred as such would be disregarded.
However it is important to point out at this point that contrary to the position of the defendant on page 3 paragraph 4.5 of written submission, that this origination summons was filed on the 4/5/2016, my record show that this suit was instead filed on the 20/3/2017.
DECISION OF THE COURT.
I have carefully considered the argument of counsel for the parties as well as the letter of compulsory retirement of the claimant dated 27/11/2003, i.e exhibit YY3 in paragraph 16 of the claimant affidavit in support of the originating summons. This is the only document that relates to the issue of statute barred now considered in this judgment.
First I must start by stating that the law is recondite on determining when a suit is said to be statute barred. The Supreme Court in the case of IBRAHIM V. LAWAL[2015] 17 NWLR (pt 1489) 490 p. 522 has held that;
In order to determine the period of limitation, one has to look at the writ
of summons and the statement of claim to see when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witness, if the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred.See also the case of EGBE V. ADEFARASIN [1987] 1 NWLR (Pt. 47) (referred to)
The issue for determination is whether this suit is statute barred. The wrong complained of as revealed in the claimant affidavit in support of the originating summons is the compulsory retirement of the claimant from the services of the 1st defendant. The act is reflected in Exhibit YY3 dated 27/11/2003. This court is strongly of the opinion that the claimant cause of action arose on the above mentioned date. Section 2(a) of the Public Officers Protection Act provides;
- 2 (a) Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuant 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 provision shall have effect.
(b)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.
This suit was instituted in this court on the 20/5/2017, whereas the claimant course of action is deemed to have arisen on the 27/11/2003. The claimant counsel has sought to argue that exhibit YY3 was a review of the Court of Appeal decision in Appeal No CA/C/129/2001 discharging and acquitting the claimant of the criminal charges against him and as such amounted to abuse of office and where there is an abuse of office a public officer cannot seek the protection of the Public Officers Protection Act. And as such the claimant cannot seek the protective cover of the Public Officers Protection Act. While it is settled law that in cases of abuse of office, a public officer cannot seek the protection of the Public Officers Protection Act, for which the case of OFFOBOCHE V OGOJA LOCAL GOVERNMENT & ANOR [2001] 16 NWLR ( pt 739) 458@ 485 and EGBE V ADEFARASIN [l985] 1 NWLR (Pt 5) 56 are authority for this position. However Exhibit YY3 cannot amount to an abuse of office by the defendant insofar as the claimant argues that the said exhibit reviewed the decision of the Court of Appeal in Appeal No CA/C/129/2001, That exhibit in fact, confirmed the decision of the Court of Appeal when in paragraph one it stated
I am directed to convey the Navy Board’s approval of the Court of Appeal judgment for the reversion of the General Court Martial Judgment from
dismissal to retirement and discharge on SNLR WEF 17 May 03 of the following Officers, and Ratings
(c)Lt.Y. T. Yakubu NN/1866
I must not also forget to add that the investigation of the act of a public officer to determine the existence of malice or abuse is condition upon the action being instituted within the period prescribed by section 2 of the Public Officers Protection Act. The Supreme Court emphasised this in the case of RAHAMANIYYA UNITED (NIG) LTD VS. MIN. OF FEDERAL CAPITAL TERRITORY & 30 ORS.[2009] 43 WRN 124 @ pg. 146 lines 25 – 35 where Per Aboki JSC in delivering the lead judgment held that:
If an action against a public officer or public organization is statute barred having not been brought within the period of 3 months prescribed by the Public Officers Protection Act, there will be no basis for investigating the conduct of the public officer which gave rise to the action. The conduct of the defendant as to whether he was malicious or not is irrelevant in determining whether the cause of action is statute barred under section 2 of the Public Officer Protection Act.
I therefore find no merit in the line of argument canvassed by the claimant counsel. Upon the issuance of the letter of compulsory retirement of the claimant as contained in exhibit YY3, the claimant ought to have instituted this action within the time prescribed by section 2(b) of the Public Officers Protection Act. Instead the claimant upon being compulsorily retired took a course of petitioning the Senate of the Federal Republic of Nigeria instead of instituting the action challenging the compulsory retirement. By his own election to pursue that course, he lost his right of action. He is barred from instituting this action now after a period of over 14 years.
The law is that where an action is adjudged statute barred by the court the appropriate order the court can make is an order dismissing the action. See NPA V. LOTUS PLASTIC [2006] Vol. 134 LRCN at pg. 579
Accordingly this court hereby holds that this action is statute barred. This suit is hereby dismissed.
SIGN _____________________________________________
HON. JUSTICE (Dr.) ISAAC J. ESSIEN.
( PRESIDING JUDGE)
