IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE
BEFORE HIS LORDSHIP HON. JUSTICE A.A ADEWEMIMO
DATED: 14th November, 2018
SUIT NO: NICN/AD/08/2018
BETWEEN
MR AKEREDOLU FOLA ANTHONY
CLAIMANT
AND
EKITI STATE JUDICIAL SERVICE COMMISSION
DEFENDANT
REPRESENTATION:-
L.A FASANMI FOR THE CLAIMANT
KAYODE AKINWUNMI FOR THE DEFENDANTS
RULING/JUDGEMENT
The Claimant by a Complaint before this Court on the 21st of June, 2018, claims against the Defendant as follows:
- Declaration that the termination of the employment of claimant by the defendant without justification is wicked, illegal, unconstitutional, wrongful, null and void of no effect whatsoever.
- An order of this Honourable Court directing the defendant to reinstate the claimant and pay all his entitlements since his employment was wrongfully terminated forthwith.
- An order of this Honourable court directing the defendant to place the claimant in appropriate cadre like his colleagues forthwith.
The Claimant filed along with the Complaint all the accompanying processes, i.e. his Statement of facts, Written Statement on Oath, list of witnesses & documents to be relied upon.
The Defendants in this case equally filed a memorandum of conditional appearance dated 9th of July, 2018, the statement of defence and all the accompanying processes. The Defendants earlier filed a motion on notice dated 4th July, 2018 challenging the jurisdiction of this court which was heard on the 23rd of October, 2018. The grounds of the application are as follows;
- The Claimant’s action is statute barred as same offends some provisions of Public Officers Protection Act.
- The Claimant has no cause of action.
- The action is grossly incompetent.
A 10 paragraph affidavit dated 4th of July was filed along with the motion, deposed to by Bimpe Ojo, female, litigation clerk in the law office of Kayode Akinwumi of 5, Iyato street Ado-Ekiti, Ekiti State, and attached to the affidavit is the claimant’s letter of dismissal marked Exhibit A. In compliance with the Rules of this court a written address was also filed as arguments in support of the application wherein two issues were formulated for determination by the Defendant/Applicant to wit;
- Whether the Claimant’s action is not statute barred by virtue of the specific provisions of S.2 of the Public Officers Protection Act Cap. P41 LFN 2004.
- Whether or not the failure of the claimant who is contesting his dismissal from the service of the Ekiti state judiciary, to attach the letter of dismissal issued to him by the defendant has not rendered his case incompetent and thereby rob this honourable court of the required jurisdiction.
On issue one, counsel submitted that S.2 of the Public Officers Protection Act stipulates the time limit within which a party can seek redress against public officers. He argued that it is clear by the Exhibit A attached to the motion that the Claimant was dismissed from the service of the Ekiti State Judiciary on 13th May 2013, while the instant action was filed at the registry of this court on the 21st of June, 2018, almost five years after the cause of action arose. He cited Williams v. Williams [2008] 10 NWLR (pt.1095] 364 at 370. And submitted that the Claimant’s action is statute barred because it was filed outside the three (3) months requisite period allowed by statute, and the court cannot extend the time to allow the cause or right to survive. He cited in support of his position the following cases University of Ilorin v. Adeniran [2007] ALL FWLR (Pt.382) 1871 at 1890; Egbe v. Adefarasin (No.1) [1985] 1 NWLR (Pt.3) 546; Cross River University of Technology v. Obet [2011] 15 NWLR (Pt.271) 588 at 610-611.
On issue two, counsel submitted that the Claimant’s suit is incompetent because of the failure to annex the letter of dismissal issued and served on him by the Defendant/ Applicant in this case. He cited Order 3 Rule 13 of the National Industrial Court of Nigeria (civil procedure) Rules 2017 which provides as follows;
“where the claimant is challenging the termination of appointment, the suspension or dismissal of the claimant there from, the complaint shall be accompanied by the claimant’s letter of appointment, if any, together with a letter of confirmation of appointment, letter(s) of promotion where applicable, notice or letter of suspension, termination of appointment or dismissal and all other documents the claimant wishes to rely upon at the trial of the suit…”
Counsel argued that the use of the word “shall” in the above cited Order, connotes mandatoriness with no discretion afforded the Claimant. He cited the cases of Achineku v. Ishagba [1998] 4 NWLR (Pt.89) 411; LT.Gen. Bamaiyi v. A.G Federation [2001] FWLR (Pt. 64) 344, and urged the court to hold that the failure of the claimant to adhere to this mandatory provision of the rules has rendered this suit incompetent.
In conclusion, counsel urged the court to dismiss the claimant’s case in its entirety with substantial cost for being statute barred a situation which has robbed this court of jurisdiction.
The counsel for the Claimant filed an 18 paragraph counter affidavit dated 19th of July, 2018 deposed to by the Claimant in response to the preliminary objection filed by the Defendants, also attached are some Exhibits, and a written address which was adopted at the hearing, the Claimant/Respondent in his address adopted a sole issue for determination to wit;
”whether this honourable court is clothed with power in law to entertain the substantive suit”
On the issue, Claimant’s counsel argued that the action of the claimant is not statute barred because the dismissal of the claimant by the defendant was done in bad faith and without any semblance of legal justification. He argued that there is no letter from the West African Examination Council (WAEC) that the claimant was engaged in any examination malpractice till date, and that despite the lack of such evidence, the Defendant still went ahead to dismiss the claimant on the ground of falsification of certificates.
Counsel admitted that the claimant was actually dismissed vide the letter dated 13th of May, 2013 but the matter was not finally laid to rest until the 28th of March, 2018. He therefore submitted that it can be deduced therefrom that the cause of action arose on 28th March, 2018. He cited in support of his position the following cases of Ansa v. Etim [2010] 11 WRN page 145 at 158 lines 40-20; Ibeto cement Co. Ltd. V. A.G. Fed. [2008] 1 NWLR part 1069 page 470 at 498-499 paras H-B.
L.A Fasanmi of counsel for the Claimant/Respondent posited that all the material facts in respect of the dismissal of the claimant on 13th May, 2013, occurred after 13th May, 2013, this is because there were correspondences between both parties after that day, specifically he cited the fact that the defendant wrote a letter to the claimant on the 11th of April, 2016, on the issue of the certificate, explaining that the commission has written to WAEC for them to confirm the claimant’s revalidated result. He went further to argue that the Examination body equally wrote a letter to the defendant on the 26th March, 2013 informing the defendant that the examination body is attending to the issue of the claimant and all these are material facts which the claimant will rely on to prove his case in the substantive matter.
Counsel did not dispute the assertion of the Defendant that the claimant did not attach the letter of dismissal to his action but averred that this was not done on purpose. He cited Order 5 rule 1 of the rules of this court which provides that
“Failure to comply with any of these rules may be treated as an irregularity and the court may give any direction as it thinks fit”
Counsel argued that the word” shall” used in Order 3 rule 13 is directory and the rules of court are rules of procedure, as they do not by themselves alone confer jurisdiction. He argued that the rules of court should be seen as subservient handmaids to justice and not as omnipotent masters, at war with justice. He cited Nwachukwu v. State [2004] 17 NWLR part 902 page 262 at 274 paras G-H. He further argued that the defendant waived his right to invoke the cited order of court by filing the statement of defence and is therefore estopped from raising the issue of procedural irregularity.
Counsel argued that assuming without conceding that this court lacks jurisdiction to entertain this suit, the apex court has enjoined any court below it to take the merits of a matter in the alternative, he cited Feed & Food Farms (Nig). Ltd v. NNPC [2009] 37 WRN page 1 at 23 lines 35-40.
Finally, counsel urged the court to resolve the sole issue in favour of the claimant and dismiss the application of the defendant in the interest of justice.
I have carefully considered all the processes filed by learned counsel on both sides, the accompanying documents and authorities cited, it is pertinent to consider the main issue in this application which is Whether or not this suit is statute barred to divest this Court of its jurisdiction;
Jurisdiction it has been held in a plethora of cases is a fundamental issue as it touches on the competence of the court. “It is the threshold and lifewire of any determination and should be considered and determined before considering anything else, as a decision no matter how well considered will come to nothing once the court lacks authority to try it”. See Bada, J.C.A in Raphael Ogumka v. Corporate Affairs Commission [2010] LPELR-4891(CA). See also Elugbe v. Omokhafe [2004] 18 NWLR (Pt.905) 319; Cotecna International Ltd v. Ivory Merchant Bank Ltd [2006] All FWLR (Pt.315) 26.
It is the Defendant’s contention that the claimant suit is statute barred as the cause of action arose in 2013 and the Public Officers Protection Act only allows a three months period within which an action can be instituted against a public officer, it is not in doubt in this case that the Defendants are public officers within the context of S.2 (a) of the POPA. The claimant on the other hand contended that the cause of action in this suit arose on the 28th of March, 2018.
A public officer is defined as officers engaged in the public service of the Federation or the State. Section 318 (h) of the 1999 Constitution as amended defines public service thus;
“Public service of the Federation means the service of the federation in any capacity in respect of the Government of the federation and includes service as;
..”
The Court has elaborated on the term public officer in Asagwa V. Chukwu [2003] 4 NWLR (Pt. 811) 540 at 551, per Aboki JCA: “the term public officer referred to in the interpretation Act can only be described to be referable to those enjoying employments with statutory flavour as reflected in Section 318(1) of the 1999 Constitution as amended”
In section 2 (a) of the Public Officers Protection Act, LFN 2004 it is provided that an action against a Public Officer must be instituted within three (3) months of the act; neglect or default complained by the aggrieved party. A careful perusal of the documents before me reveals that the cause of action arose in this suit on the day the claimant was dismissed by the Defendant, it is the position of the law that a dismissal takes effect from the moment it is received by an employee, paragraph 3 of the Claimant’s counter affidavit clearly admitted that he was in his words “illegally dismissed in May 2013” Fasanmi LA of counsel for the Claimant’s argument is that the cause of action arose on the 28th of March 2018 , in evidence however is a letter dated 26th April 2018 written to the claimant informing him that his “appeal was therefore dismissed” and no merit was found in his arguments raised for pardon and reinstatement. (Underlining mine for emphasis).
The law is clear that an action is said to be statute barred when there is a limited period within which an action can be brought by the provision of the law or an enabling statute i.e. there is a time limit during which certain actions or steps should be taken, and one is barred from taking action after the period specified in the statute, see Ebonyi State University & Anor v. Ifeanyi & Anor [2016] LPELR-41051 (CA); NIPOST v. Mordi [2007] LPELR-8680 (CA). It is no doubt the duty of court to hear before it any motion before it, especially when it has to do with jurisdiction, the issue raised by counsel in this case affects the competence of the Court to entertain this suit and as such the court has the duty to ascertain and decide on the issue of period of limitation from the Complaint and Statements of Facts, see Woherem J.P V. Emereuwa & Ors [2004] 6-7 SC 161; Mil. Admin, Ekiti State V. Aladeyelu [2007] 14 NWLR (Pt 1050 619 Where the Supreme Court held that
“For the purpose of determining whether or not an action is statute barred, the period of limitation is determined by looking at the writ of summons and the statement of claim only. I will however add, where one has been filed, it is from either or both these processes that one can ascertain the alleged date when the wrong in question is said to have occurred or been committed, thereby giving rise to the plaintiffs ‘cause of action . When that ascertained date is compared with the writ of summons or originating process filed in the Court. it can then be determined whether the action was instituted within the period allowed by law, the action is said to be competent and the Court has the jurisdiction to entertain the same but where it is found to have been instituted outside the period allowed by law, the action is said to be statute barred and consequently, the Court is without jurisdiction to entertain same”
It is recognised however that there are some exceptions to the general rule in the POPA, and in order to decide this matter, a pertinent question to ask at this point will be;
Is the claimant’s suit within the recognised exceptions to the POPA?
The Claimant contended that his dismissal was done in bad faith, bad faith has been defined under the POPA cases as acting outside the boundaries of ones powers and duties see the case BORNO STATE JUDICIAL SERVICE COMMISSION V. DANJUMA 2017 7 NWLR Pt 1565,Pg 440 @443, and FEDERAL UNIVERSITY OF MINNA ORS V. DR. ADAEZE OKOLI (2011) LPELR-9053 (CA)…….
“The law is also that a plaintiff who alleges that a public officer acted in bad faith and abused his authority or office owes the burden of proving such allegation. At page 483 of the SCNJ report of OFFORBOCHE V. OGOJA L.G, the supreme had court stated the position when it said:-“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 Law of such protection. The burden is on the plaintiff to establish that the defendant had abused his position and that he acted with no semblance of legal justification. Evidence that he may have been overzealous in carrying out his duties, or that he acted in error of judgment or in honest excess of his responsibility, will not amount to bad faith or abuse of office. Abuse of office is use of power to achieve ends other than those for which power was granted, for example gain, to show undue favour to another or to wreak vengeance on an opponent to mention but a few”
The defendant in this case is the body charged with appointments, discipline and promotion of the staff of the commission, and as long as it acted within the boundaries of his powers to dismiss any erring staff it is presumed that it acted bona fide, i.e in good faith, it follows therefore that the Claimant retains the burden of proving bad faith on the part of the Defendant, from the facts adduced before this court however, the Claimant did not discharge this burden, the claimant neither adduced evidence of bad faith on the part of the Defendant nor proffer evidence that the power was wrongly exercised by the body(the Defendant) empowered by law to do so at the material time, the issue of bad faith cannot therefore avail the Claimant/Respondent in this case. On the limitation period, a cursory look at the Complaint before this Court shows that the matter was filed on the 21st of June, 2018 and it is also clear from the processes filed by the claimant in this application, by his own counter affidavit, that the cause of action arose on the 13th of May, 2013, that was when he was given a letter of dismissal from the Ekiti State Judicial Service Commission. A comparism of the two dates shows a period of about 5 years before the Claimant instituted this action in Court as opposed to the 3 months prescribed by the Act. The claimant having admitted the fact that he was indeed given a letter of dismissal on the 13th of May, 2013, whether wrongfully or rightfully, cannot now claim that the Defendant’s letter dated 26th April, 2018 gave rise to the cause of action in this case, this argument will not hold water, the position of the law is, time starts to run as soon as the cause of action arose and negotiations cannot freeze time see Eboigbe v. NNPC [1994] NWLR (Pt.347) 649; the only way negotiation can freeze time is if there is an admission of liability in the course of negotiation between the respective parties see Teigboren v. The Governor of Delta State & Ors [2014] LPELR-23220 (CA), this is however not applicable in the instant suit because the Defendant actually affirmed the dismissal of the Claimant with the letter dated 23rd April, 2018. This case is therefore statute barred, having been instituted outside the three (3) months statutorily prescribed period, I so find. In all, I hold the Claimant’s case is statute barred having been caught by Section 2 (a) of the Public Officers’ Protection Act, LFN 2004, and the court lacks the jurisdiction to entertain same.
The Defendant’s application is predicated on the jurisdiction of the court, and the position of the law is that where the court lacks the requisite jurisdiction to determine a suit, the proper order to make is an order of dismissal, see Okwu &Anor V. Umeh & Ors [2015] LPELR-26042 (SC).
Consequently, the Defendant’s preliminary objection succeeds, this suit is hereby dismissed for want of jurisdiction. I so hold.
I make no order as to Cost
Judgment is accordingly entered.
Hon. Justice A.A. Adewemimo
Judge
