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National Industrial Court

Mr. Dirisu Timny Aliu VS National Youth Service Corps

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HONOURABLE MR. JUSTICE SANUSI KADO

21ST DAY OF FEBRUARY 2018                               

 

NICN/ABJ/394/2014

BETWEEN:

Mr. Dirisu Timny Aliu ……………………………………… Claimant/Respondent

AND

National Youth Service Corps …………………………….. Defendant/Applicant

REPRESENTATION:

RULING/JUDGMENT.

This action was commenced by the Claimant via complaint filed on 24th day of December, 2014 at the Registry of this court in Abuja. The Claimant is contesting the validity of his compulsory retirement from the service of the Defendant.

Upon being served with the originating court processes commencing this suit, the Defendant filed notice of preliminary objection dated 25th day of March 2015, filed on the same day. In the motion on notice for preliminary objection the Defendant/Applicant is seeking for an order dismissing the suit for want of competence and jurisdiction.

The grounds for the objection are:

  1. The suit constitutes an abuse of court process as the Honourable Court is functions officio.
  2. The suit is statute barred and the Honourable Court has no jurisdiction to entertain same.

In moving the motion on notice for preliminary objection, Mr. O. P. Omuru, Counsel for the Defendant/Applicant referred the Court to section 19 of the National Youth Service Corps Act and section 2 (a) of the Public Officers Protection Act and submitted that the application is seeking for an order of this Court dismissing this suit for lack of competence. The application was supported by a 5 paragraphs affidavit sworn to by one Ali Panasam, a Clerical Officer with the legal unit of the Applicant, with two Exhibits ‘A’ and ‘B’ respectively. In line with the Rules of this Honourable Court the Defendant/Applicant filed along with the notice of preliminary objection a written address containing argument in support of the application.

In opposition to the preliminary objection the Claimant/Respondent on 5/5/15 filed a 14 paragraphs counter affidavit and a written address. The Defendant/Applicant in turn filed on 11/11/15 a 5 paragraphs further and better affidavit and a reply on point of law.

ARGUMENT

The applicant formulated two issues for determination as follows:

  1. ‘’Whether in view of the Ruling/Judgment of the Honoureable Court delivered on the 11th day of November 2014 in suit No. NICN/ABJ/342/2013 between the same parties herein, the Court is functus officio’’.
  2. ‘’whether the present suit is statute barred, having been well. Over one year three Months and seven days after the accrual of the cause of action’’.

 

ISSUE ONE

Arguing issue one Counsel for the Applicant referred to Exhibit ‘A’ attached to the affidavit in support of this application and submitted that this suit constitute an abuse of the process of this Court as same was earlier finally determined and dismissed by this Court and cannot be re-litigated before the same trial Court. Counsel submitted that this action is same with suit No. NICN/ABJ/342/2013 filed on the 17th day of December 2013, which was dismissed on the 11th day of November 2014 on the ground that the Respondent did not appeal to the presidency in the first instance as provided by the law establishing the Applicant before the institution of this action. Counsel further submitted that the Respondent did not appeal against the decision of the Honourable Court dismissing the action. It is the contention of Counsel that the present suit is same in all ramifications, including the parties and subject matter with the suit that was earlier dismissed as per Exhibit ‘A’. Counsel submitted that in view of Exhibit ‘A’ the right of the parties in respect of which it was given is not expected to be brought back to the trial Court for further adjudication. On this submission Counsel relied on HONDA PLACE LTD V. GLOBE MOTORS HOLDINGS NIG. LTD (2005) 11 MJSC 1020. Counsel further submitted in view of Exhibit ‘A’ this court is functions officio and adjudicating in the present suit will amount to re-opening the case or sitting on appeal over its earlier final decision. Counsel submitted that the Respondent cannot re-litigate the same suit before the same trial Court. To buttress this submission Counsel relied on NIGERIA ARMY V. MAJOR JACOB IYELA (2008) 12 MJSC 74 © 96. Counsel submitted that the only option open to Claimant/Respondent was to appeal against the decision contained in Exhibit ‘A’

 

 

ISSUE TWO

On issue two Counsel for the Claimant/Applicant submitted that having regard to the processes filed in this suit this court has no jurisdiction to entertain this action. Counsel submitted that for this Court to exercise jurisdiction this Court must be guided by laid down principles. The subject matter of the case must be within the jurisdiction of the Court and there must be no feature in the case which prevents the Court from exercising its jurisdiction, on this submission Counsel relied on Attorney-General Anambra State V. Attorney General of the Federation (2007) 8 MJSC 280 82. Counsel further submitted this action is statute barred same having been caught by section 2 (a) of the Public Officers Protection Act, OFILI V. C.S.C (2008) 2 NWLR (PT. 1071)  238 (c) 252, IBRAHIM V. JUDICIAL SERVICE COMMITTEE (1995) 14 NWLR (PT.584) 1. Counsel referred to section 1 (1) of the National Youth Service Corps Act and submitted that since the Defendant/Applicant was creation of statute is a public officer. Counsel also submitted that the period of limitation is determined by looking at the writ of summons and statement of claim with a view to ascertaining the date on which the wrong complained was committed and compare that date with the date the writ of summons was filed. If the date pleaded as to when the right to sue accrued is beyond the limitation period enacted by the applicable statute, the action is statute barred and incompetent. FORESTRY RESEARCH INSTITUTE OF NIG. V. GOLD (2007) 9 MJSC 210 (C) 220. Counsel submitted looking at the processes filed the cause of action arose on 17th day of September 2013, when the Respondent received his letter of compulsory retirement dated 5th day of September 2013, Counsel relied on paragraph 3(h) and (i) of the Applicant’s affidavit in support of this application and Exhibit ‘B” attached thereto. Counsel submitted that the Claimant/Respondent averment as contained in paragraph 21 of the statement of facts to the effect that he received the said letter on 11th November 2013, as fruitless effort to misrepresent the facts and misguide the Honourable Court on the true position of the facts of this matter. Counsel further submitted that this suit was filed on 24th day of December 2014, one year three Months and seven days after the accrual of the cause of action. Counsel submitted this action was brought outside the period prescribed by law the action is therefore statute barred EGBE V. ADEFARASIN (1985) 1 NSCC 1COL. 16, 643 (C) 658

DEFENDANT/RESPONDEN’S ARGUNENT IN OPPOSITION:

In opposing this application Mr. A.A Malik, Counsel for the Claimant informed the Court that the Claimant/Respondent has on 15/5/15 filed a 14 paragraphs counter affidavit and a written address Counsel relied on all the paragraphs of the counter affidavit and adopted the written address filed along with the counter affidavit.

The Claimant/Respondent adopted the issues formulated by the Defendant/Applicant.

ISSUE ONE

On issue I Learned Counsel for the Claimant/Respondent referred the court to Black law Dictionary Ninth Edition at page 743 on meaning of Functus Officio. Counsel also referred the Court to F.B.N. V.T.S.A LTD (2010) 15 NWLR (PT.1216) 247 © 296, ODIGWE V. J.S.C. DELTA STATE (2011) 10 WWLR (PT.1255) 244@ 287 UKACHUKWU V. UBA (2005) 18 NWLR (PT.956) 1060, IKPAG V. UDOBANG (2007) 2 NWLR (PT. 1017) 184 @ 206. Counsel also contended that the facts and circumstances of the case in which the principle is being invoked must be X –rayed or examined vis – a – vis the earlier decision of the same court.

Counsel further submitted that the invocation of the principles of functus officio to this case by the Defendant/Objector is totally misplaced, completely non seqitur and manifestly misleading Counsel submitted that the Ruling of this Court in suit No NICN/ABJ/342/2013 Exhibit ‘A’ deal with a preliminary objection on point of law and was not a decision on substantive issues submitted to the court for adjudication. Counsel contended that the test to determine whether any order (decision or Judgment) of Court is final or interlocutory is does the matter as well finally disposes of the rights of the parties? If it does is final order, if it does not then it is only an interlocutory order. Counsel relied on OGUNTIMEHIN V. OMOLOYE (1957)2 FSC 56, AFUWAPE V. SHODIPE (1957) SCNLR 265, AKINSANYA V. UBA LTD (1986) 4 NWLR (PT.35) 273, UDE V. AGU (1961) 1 ALL NIR 61, EBAKAN V. EKWENIBE & SONS TRADING COMPANY LTD (1999) 10 NWLR (PT.622) 242. Counsel submitted that Exhibit ‘A’ did not finally disposed of the rights of the parties. Because at no time did prior to the time Exhibit ‘A’ was made did the parties to the said suit lead evidence in support of their respective case. Counsel submitted that Exhibit ‘A’ dealt with preliminary objection. To argue therefore as the Defendant/Applicant Counsel in his written address to the effect that Exhibit ‘A’ was a final judgment is to say the least prurile and misleading. The court merely “dismissed” the suit on the ground that the Claimant did not comply with a pre-condition of appealing to the president of the Federal Republic of Nigeria before filing a suit. Therefore this Court cannot be functus officio in relation to the substantive issue in that suit vis-à-vis the present proceedings. Counsel also submitted that although the word dismissed was used by this Honourable Court in Exhibit ‘A’ the legal effect of the word is indeed striking out because the ruling merely or only temporarily put on end to the suit due to some temporal or procedural defect. At best the word dismissal was in advertently used or employed by the Court, because a ruling on a preliminary point of law cannot amount to dismissal of a suit and therefore foreclose the right of the Claimant to re-litigate DIM V ATTORNEY GENERAL OF THE FEDERATION (1986) 1 NWLR (PT. 17) 41, where it was held that where a court of law holds that it has no jurisdiction to hear or determine a case that court would have no jurisdiction to dismiss a case in other words the appropriate order the court should and can make is striking out and not dismissing the suit see CHUKWU V. AMADI (2012) 4 NWLR (PT.1289) 136 @ 137. Counsel also submitted that the ruling of this court in Exhibit ‘A’ deems not constitute a judgment on the merit as it has not in any way disposed of the rights of the parties or issues submitted for adjudication or pronounced upon same. The court has no power to dismiss the suit since it holds that it has no jurisdiction.

ISSUE TWO

On issue 2 counsel submitted that in determining whether a suit is statute barred or not the statement of claim that will be scrutinize counsel referred the court to statement of fact filed on 24/12/2014. And submitted that the claimant is seeking to enforce his fundamental right to fair hearing i.e the suit is for enforcement of fundamental right which cannot be affected by any limitation statute whatsoever vide Order 3 Rule 1 of the Fundamental Rights (Enforcement Procedure Rules). Counsel submitted that enforcement of Fundamental Right can be commenced through any means whatsoever. Counsel relied on SUNDAY V. ABDULAHI (1989) 4 NWLR (PT. 116) 387, OKHOE V. GOVERNOR OF BENDEL STATE (1990) 4 NWLR (PT. 1444) 327 and MINISTER OF INTERNAL AFFAIRS V. SHUGABA (1982) 3 NCLR 915. Counsel referred to paragraphs 15, 16, 17, 18, 19, 20, 21, 23 and 36 of the statement of facts and submitted that the averments circumscribe the claimant’s suit within the confines of Fundamental Rights Enforcement Procedure Rules. Counsel submitted the provisions of Public Officers Protection Act will not apply Counsel further submitted it is not in all cases in which the public officer is a Defendant that public officers protection Act can be invoked as a shield. Where the suit against Public Officer borders on gross abuse of office, serious misconduct and desecration of office or position etc the provision of section 2 (a) of the Public Officers Protection Act pales into insignificance NWANKWERE V. ADEWUMI (1966) 4 NSC C 140 @ 143, IBRAHIM V. JUDICIAL SERVICE COMMITTEE (1998) 12 SC 20 where Supreme Court held that the provision of section 2 (a) of the Public Officers Protection Act will not avail a Public Officer who acted in excess of his powers or constitutional duties and outside the colour of his office. It is the submission of counsel that the decision taken by a committee to compulsory retire the Claimant without giving him opportunity to defend himself violate his Constitutional right to fair hearing as contained in section 36 (1) of the 1999 Constitution (as amended). Counsel submitted that the act of the Defendant/Applicant is outside the colour of its office or outside its statutory or constitutional duty as shown above. Counsel urged court to hold that the suit is not statute barred.

Counsel also contended that assuming without conceding that the provision of section 2 (a) of the Public Officers Protection Act is applicable to this suit, it is erroneous to contend that this suit was instituted “one year three months and seven days after the accrual of cause of action” The said contention was based on misconception of law and facts or have chosen to deliberately misrepresent fact to mislead the court. This submission was based on the fact that from the originating process filed by the Claimant he was in court with the Defendant/Objector for a period of 16 months 24 days from 17/12/13 when he instituted suit No. NICN/ABJ/342/2013 and 11th November, 2014 when the same suit was struck out or dismissed. Counsel submitted that in computing the limitation period the time wherein parties slug it out in Court is usually left out of reckoning. Counsel submitted this Court should resist the invitation to rely on paragraph 3(1) of the affidavit in support of the notice of preliminary objection and Exhibit ‘B’ attached there to coming to the conclusion that the cause of action accrued on the 12th September, 2013 as against 11th November, 2013 stated by the Claimant in paragraph 27 of the statement of facts. This submission was based on the grounds that in determining of cause of action in this statement of facts filed by the Claimant and nothing more. On this submission Counsel relied on ALHAJI IBRAHIM SHUAB KASANDUBU V. ULTIMATE PETROLEUM LTD (2005) 7 NWLR (PT. 1086) 274 © 302, ANSA V. ETIM (2010) ALL FWLR (PT. 541) 1555. Counsel submitted that it is not allowed to introduce extraneous material at the point of preliminary objection in affidavit. IDACHABA V. ILANA (2007) 6 NWLR (PT.1030) 277 @ 297, WOHEREM V. EMEREWA (2004) ALL FWLR (PT.221) 1570 @ 1581. Counsel further contended that if this court can examine Exhibit ‘B’ evidence has to be called to determine the allegation of forgery to resolve the issue. Counsel submitted that the act of the Defendant  forms the fulcrum of the plaintiffs  case is a continuous action which puts it clearly within the exceptions recognized under section 2 (a) of Public Offices Protection Act. It was further submitted that the Claimant’s cause of action borders on right infringement committed by the Defendant against him in his contract of employment and time does not run against contract of employment under public Officers Protection Act. Counsel relied on ODUKO V. GOVT. OF EBONYI STATE (2004) 13 NWLR (PT. 891) 487 @ 504 Counsel submitted that the suit is neither functus officio nor statute barred.

REPLY ON POINT OF LAW BY THE CLAIMANT/APPLICANT.

Replying on point of law the Defendant/Applicant referred the court to a 5 paragraphs further and better affidavit and the written address on point law. Counsel adopted the written address on point of law and urged the Court to consider it as argument on point of law.

Learned Counsel for the Defendant/Applicant further referred the court to Order 11 Rule 2 or the National Industrial Court of Nigeria Rules 2017 and submitted that the counter affidavit and written address filed on 5/5/15 the Claimant/Respondent are incompetent because the motion on notice for preliminary objection dated 25/3/15 was deemed properly filed and served by leave of court on the 21/4/15 consequently, the 7 days allowed by the Rules of court within which the Respondent shall file his counter affidavit expired on the 28/4/15. However, the counter affidavit and written address were filed on 5/5/15 in excess of 7 days without the courtesy of seeking leave of Court to do so as provided by the Rules of Court. Counsel also submitted that Rules of court ore meant to be obeyed in support of this submission. Counsel cited the case of OWNERS OF THE MV “ARABELLA” V. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 8 MJSC 145 @ 159. Counsel urged the Court to hold that there is no competent opposition to the Applicant’s application and urged the Court to strike out the counter affidavit and written address. Counsel contended that contrary to submission of the Claimant/Respondent this suit is not different from suit No. NICN/ABJ/342/2013 earlier dismissed by this court on 11/11/14. Counsel further submitted a careful perusal of Exhibit ‘C’ to the Applicant’s further affidavit and comparing it closely with the writ of summons in the present suit, will revealed that the claims, statement of facts and witness statement on oath in the two suits are the same and we urge the Court to so hold. Counsel submitted on claim for continuous injury, the limitation period starts to runs from the date of its commission. It is immaterial to the date when the cause of action accrued that the effect of the complainant’s injury or wrong continues “ ad infinitum” continuation will only enhance question of damages on this submission reliance was placed on GULF OIL COMPANY (NIG) LTD V. CHIEF OMETA OLUBA 2 ANR (2002) 12 NWLR (PT. 780) 92 @ 113. Counsel also submitted that vide paragraph 17 of statement of fact Claimant admitted receipt of letter of retirement on 17/9/13 by this admission it need no proof. The allegations of forgery are after though and must fail as he cannot move a volte-face at this stage. Counsel in support of this submission referred to the case of EVA RAUPH BELLO OSENI V. CHIEF LASISI PT 353 BAJULU & 20RS (2009) MJSC (PT1) 30 @ 50, VEEPE INDUSTRIES LIMITED V. COCOA INDUSTRIES LIMITED (2008) 7 MJSC 125 @ 138 and DR. AUGUSTINE N. MOZIE & 6 ORS V. CHIKI MBAMALU & 2 ORS (2006) 11 MJSC 118 @ 127. Counsel submitted that the submission that time will not run when the Claimant was in court was misconceived the effect of dismissal of the Respondent’s earlier suit is that there has been nothing pending before the court to be reckoned with. Counsel submitted contrary to the submission of the claimant, an order of dismissal on issue of jurisdiction finally disposed of the case. On fundamental Right Counsel submitted that the present action as it is constituted is not a fundamental right action, the issue of fundamental right is incidental or ancillary to the main complaint which is compulsory retirement from service.  It is further submitted that section 36 of chapter 1V of the Constitution does not contemplate  case of employment or retirement matters and Courts have severally frowned at bringing such issues under fundamental right to support this submission Counsel cited the case of JACK V. UNIVERSITY OF AGRICULTURE MAKURDI (2004) 12 FWLR (PT. 865) 208, PETERSIDE V. IMB NIG. LTD (1993) 8 NWLR 311 @ 279. Counsel submitted that this is employment matter and not Fundamental Right. On issue of Malice counsel submitted that it cannot be raised at stage of considering statute barred. SANNI V. OKENE LG (2008) 10 MJSC 199, ANOZIE V. ATTORNEY GENERAL OF THE FEDERATION REPUBLIC OF NIGERIA & 4 ORSS (2008) 10 NWLR (PT.1095) 278. On technicalities counsel submitted that the issue raised in the preliminary objection is issue of jurisdiction which is fundamental to the determination of the suit. The issue can be raised at any stage even on appeal at Supreme Court for the first time.

DECISION.

I have carefully and assiduously examined all the processes filed in this suit. I have  equally attentively listened to Counsel for both parties in their oral submissions before the Court and read the written addresses of Counsel and the authorities cited therein.

The Claimant/Respondent did not formulate any issue for determination. Rather he relied and adopted the two issues formulated by the Defendant/Applicant. Consequently, the two issues formulated by the Defendant/Applicant will be adopted in resolving this application.

ISSUE ONE

The contention of the Defendant/Applicant on this issue is that Exhibit ‘A’ which is a copy of the ruling of this Honourable Court will operate to stopped the Claimant from instituting this action. According to Counsel this action is same with suit No. NICN/ABJ/342/2013 filed on the 17th day of December 2013, which was on the 11th day of November 2014, dismissed by the Court on the ground that the Respondent did not appeal to the presidency in the first instance as provided by the law establishing the Applicant before he instituted the action. Therefore this action constitute an abuse of the process of this Court as same was earlier finally determined and dismissed by this Court and cannot be re-litigated before the same trial Court. This Court is therefore functions officio and adjudicating on it, in the present suit will amount to re-opening the case or sitting on appeal over its earlier final decision. The Defendant/Respondent on the other hand argued that invocation of the principles of functus officio to this case by the Defendant/Objector is totally misplaced, completely non sequitur and manifestly misleading Counsel submitted that the Ruling of this Court in suit No NICN/ABJ/342/2013 Exhibit ‘A’ deal with a preliminary objection on point of law and was not a decision on substantive issues submitted to the court for adjudication. Counsel contended that the test to determine whether any order (decision or Judgment) of Court is final or interlocutory, is does the matter as well finally disposes of the rights of the parties? If it does is final order, if it does not then it is only an interlocutory order. Counsel submitted to argue that Exhibit ‘A’ was a final judgment is to say the least prurile and misleading. Counsel further submitted that the Court merely “dismissed” the suit on the ground that the Claimant did not comply with a pre-condition of appealing to the president of the Federal Republic of Nigeria before filing a suit. It is the contention of Counsel that this Court cannot be functus officio in relation to the substantive issue in that suit vis-à-vis the present proceedings. In reply on point of law, Counsel invited this Court to compare Exhibit ‘C’ attached to further and better affidavit with the present processes commencing this suit.

From the facts deposed to in the affidavit in support, counter affidavit, further and better affidavit with the various annexures marked as Exhibits ‘A’, ‘B’ and ‘C’, the following emerged as established not requiring any further proof not being in dispute:-

  1. The Claimant and the defendant in this suit are the same with the Claimant and Defendant in suit No. NICN/ABJ/432/2013.
  2. Upon being served with the originating processes commencing suit No. NICN/ABJ/432/2913, the Defendant filed notice of preliminary objection challenging the jurisdiction of the Court to entertain the suit.
  3. After taking argument from Counsel for both parties, the Court in a considered Ruling delivered on 14/12/2014, dismissed the Claimant’s action for lack of jurisdiction.
  4. On 24/12/2014, this action was instituted by the Claimant against the Defendant in suit No. NICN/ABJ/394/2014.
  5. Upon being served with the originating summons the Defendant filed Notice of preliminary objection challenging the competence of this action on the grounds that the Court is functus offico, the suit is abuse of the process of Court and being statute barred.

From the processes before the Court and the submissions of Counsel what this Court need to resolve is whether Exhibit ‘A’ ruling of this Honourable Court delivered on 14th December 2014, in suit No. NICN/ABJ/432/2013 is a final or interlocutory decision. If it is a final decision then this Court is functus officio in respect of this suit. However, if it is found to be an interlocutory decision then this Court is not functus officio.

It is settled law that once a court of law delivers its decision or judgment or makes an order in respect of a matter before it, it becomes functus officio and is precluded from reviewing or varying such decision or judgment or order apart from the correction of clerical mistakes or accidental slips. NIGERIA ARMY V IYELA 2008 7-12 SC 35 DINGYADI  ANR V INEC (2011) 10 NWLR( PT.1254) 347 AT 391, FBN Vs. TSA IND LTD (2010) 15 NWLR (PT.1216) 247 AT 305-306. The consideration that will lead to finding on whether or not Exhibit ‘A’ can operate as a bar to this suit, is whether suit No. NICN/ABJ/432/2013 determined by the Court in Exhibit ‘A’ has the same parties and same cause of action i.e same subject matter. This will manifest when the originating processes commencing this suit and the originating processes commencing suit No. NICN/ABJ/432/2013, are compared. Looking at the originating processes commencing the two suits as contained in the complaint and statement of facts before the Court as well as Exhibit ‘C’ also before the Court, it will clearly show that the Claimant and Defendant in the two suits are same. The next thing to do is to compare the claims in the two suits and see whether they disclose same cause of action. To have a clear picture of the claim I deemed it appropriate at this juncture to reproduce the two statements of facts in respect of the two cases under consideration. I will start with the statement facts in Suit No. NICN/ABJ/432/2013, which was earlier in time. The statement of facts in suit No. NICN/ABJ/432/2013 is as stated below as culled from Exhibit ‘C’ attached to further and better affidavit. It read:

STATEMENT OF FACTS

  1. The claimant is a Nigerian and a dutiful civil servant of Block 2, Uwani Crescent, Phase IV Kubwa, Abuja, a place within the jurisdiction of this Honorable Court.
  2. The claimant is states that he is a family man with a wife and five (5) children and the bread winner of his immediate and extended families.
  3. The Dependant is the body established by law with the responsibility amongst others, to encourage and develop a common tie among the youth of Nigeria as well as promote National Unity.
  4. The Claimant avers that the joined the services of the Dependant Precisely on 3rd August, 1998 following is employment thereat by virtue of his letter of employment dated 3rdAugust, 1998 During trial, the Claimant shall found upon the said letter wherein it is stated clearly that his employment is permanent and pensionable.
  5. Prior to the development stated in paragraph 4supra, the Claimant had during his mandatory 1-year NYSC programme undergone his primary assignment at the Directorate Headquarters of the Defendant where he served dutifully, diligently and meritoriously.
  6. Further to the fact averred in paragraph 5supra, the Claimant states that he was one of the three (3) corps members recommended for and indeed offered permanent employment with the Defendant.
  7. Upon being offered a permanent and pensionable employment by the defendant as stated in paragraph 4, supra, the Claimant was posted to the mobilization Department, Certification Until as a Senior Graphic Assistant.
  8. The claimant states that as an employee of the Defendant the terms and conditions of his employment are governed and regulated by the Federal Public Service Rules.
  9. The Claimant avers that since 1998 when he became a permanent staff of the Defendant up till the time of this suit, he has been a loyal, devoted, committed, dedicated and honest staffer and has shown, without any reservation, the exceptional honesty and exemplary skill’s in the discharge of his duties.
  10. The Claimant states that as a result of his satisfactory job performance, the Defendant has on several occasions sent or sponsored him to attend courses and training programmes at its expense.
  11. The Claimant states that having found him worthy in character and efficient in his assigned responsibility, the Defendant has occasionally ensured that he is involved in the orientation activities for corps members in the state office of the Defendant where he has been ever since.
  12. The Claimant avers that he was a key member of the mobilization Department (Certification Unit) at the Directorate Headquarters of the Defendant between 1998 and 2007 before he was transferred to Jigawa State Office of Defendant where he has been ever since.
  13. Notwithstanding the fact state in paragraph 11 supra, the Claimant avers that on a number of occasions within the past fifteen of active service in the Defendant he has successfully undertaken several official assignments in different offices of the Defendant in Lagos, Ogun, Bayelsa, Rivers, Edo, Delta, Kano, Nasarawa States, to mention just a few.
  14. The claimant states that he was shocked and embarrassed when sometime in 2010 he was orally informed by the Defendant Coordinator in Jigawa State that the Defendant has constituted a Committee on Circulation of fake NYSC Certificates and Operation orientation Camp and that he would be summoned to appear before the Committee to answer to allegation of issuance of fake certificates.
  15. Shortly after the fact stated in paragraph 14 supra and whilst he was still ruminating aver what he was told by the Jigawa state coordinator of the Defendant wondering how and who could have leveled such false allegation against him, the claimant was shocked and nun-plussed when he received a letter dated 21st/06/2012 titled “QUERY” written by the Director General of the Defendant, wherein it was stated that the Claimant has been indicted by the committee mentioned in paragraph 14 supra for circulation of fake NYSC discharge certificates as well as other sundry criminal issues. The Claimant shall found upon the said letter during the trial of this suit.
  16. Convinced that the letter stated in paragraph 15 supra is completely misplaced and that he has never been involved in any or all the allegations contained therein, the Claimant wrote a reply dated 7th July, 2012 wherein he stated, inter alia, that:
  17. He disputed the allegation contained in the Defendants letter and challenged the Defendants source of information;
  18. That he was not given a fair hearing by the Committee constituted by the Defendant to investigate the allegations;
  • He was never given any opportunity by the committee or the Defendant to defend himself;
  1. A proper investigation be conducted into the matter;
  2. In view of foregoing, it will be inappropriate to take any disciplinary action against him.

(The said reply shall be founded upon by the Claimant during the trial of this suit).

  1. As stated earlier, prior to the time the Claimant was queried, the Claimant was summoned by the Defendant orally to appear before its Panel/Committee constituted to investigate and or try the Claimant over the allegations of circulation of fake NYSC discharge Certificate as well as other sundry criminal allegations.
  2. The Claimant further states that throughout the duration of the trial or hearing mentioned above wherein the panel/Committee members leveled accusations against him, including the one’s stated in the Defendants letter dated 21st/06/2013, He was not allowed to say a single word in his defense but was rather hushed by the members of the panel whenever he made an attempt to defend himself.
  3. Furthermore, in spite of the fact that the Claimant insisted that he had witnesses who were willing and ready to testify to his innocence, the members of the panel adamantly refused to hear or his witnesses and informed him that there was nothing he could say in his defense.
  4. Based on the blatant mockery of law and order and travesty of justice committed by the panel as outlined in paragraphs 17, 18 and 19 supra the panel came to a decision indicting that claimant of all the charges leveled against him and made their recommendations to the National Governing Board of the Defendant accordingly.
  5. On 17th September, 2013, the Claimant while in his office in Jigawa was issued with a letter dated 5th September, 2013 written by the Defendant wherein it was stated that the Claimant has been Compulsory Retired from service by the Defendant based on the facts afore stated.
  6. As has been stated earlier, before the unfortunate events outlined herein before, the Claimant had been an outstanding staff of the Defendant and was hardworking, diligent and honest in his dealings. Hence on the 17thApril, 2012 the Claimant was invited for a promotion interview from Grade level 10 to Grade level 12of the civil service having merited same. The letter of invitation dated 17th April 2012 shall be founded upon during the trial of this suit.
  7. The Defendant however did not fail to use this avenue to further victimize, humiliate and oppress
  8. The Claimed being sorely aggrieved by the actions highlight above brief his solicitors with instruction to write the presidency and ventilate the Claimant’s complaints as well as request for a review of the Defendant’s decision, in compliance with the law creating it.
  9. In consonance with the instruction state paragraph 24 supra,the Claimant’s Solicitors wrote a letter dated 12th November, 2013 and addressed to the Presidency/Honorable Minister for Youth Development (who is the Defendant’s supervising Minister). The Claimant shall found upon the said letter during trial. Notice is hereby given to the Defendant to produce the original of the said letter.
  10. The Claimant state that till date the Defendant has not responded to the said letter nor granted or approve the simple request/demand contained therein.
  11. The Claimant states that as at 17th September, 2013 when he was servedwith the Defendant’s letter indicating that he has been compulsorily retired, his monthly salary, which includes allowances, and other emoluments, was N98,0QQ.Q0 (Ninety Eight Thousand).
  12. The Claimant avers that apart from the month of September, 2013, the Defendant has not paid him his salaries, allowances and other emoluments since the letter dated 7th September, 2013 was served on him on 17th September, 2013.
  13. Additionally and despite the wrongful compulsory retirement, the Claimant has not received any other form of payment from the Defendant.
  14. The Claimant states that since the wrongful, malicious and capricious compulsory retirement inflicted on him by the Defendant culminating in the stoppage of his salaries, allowances and other emoluments, the Claimant has been undergoing serious financial difficulties, emotional trauma, psychological torture and an unstable state of health.
  15. The Claimant further avers that as a result of the travails that he is being made to go through following the action of the Defendant stated hereinbefore, he has not been able to meet up his family responsibility and obligation and this is having an adverse effect on his family members who depend largely if not entirely on him.
  16. WHEREOF the Claimant claims against the Defendant asfollows:
  17. A DECLARATION that the Claimant’s appointment/employment with the Defendant enjoys statutory flavour and, therefore, is governed by and/or regulated by the Public Service Rules, Regulations, NYSC and other relevant statutes;

 

  1. A DECLARATION that the allegations of Corruption, Printing and Circulation of fake NYSC Certificates, Falsification of Records, Bribery, Corruption, Stealing, False Claim against the Directorate, etc, levelled against the Claimant and over which he was indicted and thereafter compulsorily retired from Service, are serious criminal allegations/indictments that only a court of competent jurisdiction can adjudicate upon and pronounce on;
    1. A DECLARATION that theCommittee on circulation of fake NYSC certificates and operation of fake orientation campset up or constituted by the Defendant, as well as the Defendant’s Senior Staff Committee, which either severally or jointly investigated, tried, indicted and or passed a “guilt”verdict on the Claimant and ultimately recommended his compulsory retirement from the Defendant’s services is without any power, competence or jurisdiction in law to so act and or pass the recommendation.

 

  • A DECLARATION that the proceedings of the Committee on circulation of fake NYSC certificates and operation of fake orientation camp set up or constituted by the Defendant as well as the Defendant’s Senior Staff Committee which either severally or jointly investigated, tried, indicted and or passed a “guilt” verdict was passed on the Claimant in respect of serious criminal allegations without affording him the full opportunity of fair hearing, are irregular, improper, unlawful, unconstitutional, unjustifiable, null and a violation of the Claimant’s right to fair hearing;
  1. A DECLARATION that the letter dated 5th September, 2013 issued by the Defendant and addressed to the’ Claimant by which –!the Defendant purported to compulsorily retire theClaimant is in gross violation of the Public Service Rules as well as the Constitution of the Federal Republic of Nigerian 1999 (as amended) and is a violation of the Claimant’s right to fair hearing and, therefore, improper, wrongful, unlawful and of no effect whatsoever;

 

  1. A DECLARATION that the compulsory retirement of the Claimant

from the service of the Defendant as conveyed to the claimant vide the Defendant’s letter dated 5th September, 2013 but served on him on 17th September, 2013 is unjustifiable, high handed, unconscionable, unlawful, illegal, unconstitutional and a gross violation of the Claimant’s right to fair hearing as enshrined in the 1999 Constitution (as amended)

  1. AN ORDER setting aside the decision and or recommendation of the Committee on Circulation of fake NYSC certificates and Operation of fake Orientation camp and Senior Staff Committee constituted by the Defendant which jointly or severally investigated, tried, indicted and or passed a “guilt” verdict on the Claimant and ultimately recommended his compulsory retirement from the service of the Defendant’s service;
  • AN ORDER SETTING ASIDE the Defendant’s letter of Compulsory Retirement From Service addressed to the Claimant and dated 5th September, 2013, which purported to Compulsorily retire the Claimant on the bases of the decision and or recommendation of the Committee on Circulation of fake NYSC certificates and Operation of fake Orientation camp and Senior Staff Committee constituted by the Defendant for being unjust, wrongful, invalid, unconstitutional, null, void and of no effect whatsoever;
  • AN ORDER RE-INSTATING the Claimant to his employment and position/post with the Defendant without prejudice to normal promotions and payment of allowances, other entitlements and allowances that the Claimant might be entitled to in the course of his employment in the service of the Defendant;
  1. AN ORDER directing the Defendant to pay to the Claimant forthwith all the arrears of his salaries and other emoluments due to him in the service of the Defendant from September, 2013 when he was wrongfully and unlawfully retired compulsorily until is reinstated to his position in the Defendant.
  2. AN ORDER directing the Defendant to pay to the Claimant interest at the rate of. 15% per annum on the judgment sum until the judgment debt is finally liquidated by the Defendant.
  3. AN ORDER directing the Defendant to pay to the Claimant forthwith fen percent (10%) interest on all the arrears of his salaries and other emoluments due to him in the service of the Defendant, from September, 2013 when he was wrongfully and unlawfully retired compulsorily till the Claimant is reinstated to his position in the Defendant.
  • A SUM OF N500,000.00 (Five Hundred Thousand Naira) Only,

being the cost .of this suit.

 

DATED THIS 16th DAY OF DECEMBER, 2013

 

The statement of facts in this suit NICN/ABJ/394/2014, is as follows:

STATEMENT OF FACTS

 

  1. The Claimant is a Nigerian and a dutiful civil servant of Block 2, Uwanl Crescent, Phase IV, Kubwa, Abuja, a place within the jurisdiction of this Honourable Court.
  2. The Claimant states that he is a family man with a wife and five (5) children and the bread winner of his immediate and extended families.
  3. The Defendant is the body established by law with the responsibility, amongst others, to encourage and develop a common tie among the youth of Nigeria as well as promote National Unity.
  4. The Claimant avers that he joined the services of the Defendant precisely on 3rd August, 1998 following his employment thereat by virtue of a letter of employment dated 3rd August, 1998. During trial, the Claimant shall found upon the said letter wherein it is stated clearly that his employment is permanent and pensionable.
  5. Prior to the development stated in paragraph 4 supra, the Claimant had during his mandatory 1-year NYSC programme undergone his primary assignment at the Directorate Headquarters of the Defendant where he served dutifully, diligently and meritoriously.
    1. Further to the fact averred in paragraph 5 supra, the Claimant states that he was one of the three (3) corps members recommended for and indeed offered permanent employment with the Defendant.
    2. Upon being offered a permanent and pensionable employment by the Defendant as stated in paragraph 4 and 6, supra, the Claimant was posted to the Mobilization Department, Certification Unit as a Senior Graphic Assistant.
    3. The Claimant states that as an employee of the Defendant, the terms and conditions of his employment are governed and regulated by the Federal Public Service Rules.
    4. The Claimant avers that since 1998 when he became a permanent staff of the Defendant up till the time of this suit, he has been a loyal, devoted, committed, dedicated and honest staffer and has shown, without any reservation, exceptional honesty and exemplary skills in the discharge of his duties.
    5. The Claimant states that as a result of his satisfactory job performance, the Defendant has on several occasions sent or sponsored him to attend courses and training programmes at its expense.
    6. The Claimant states that having found him worthy in character and efficient in his assigned responsibility, the Defendant has consistently ensured that he is involved in the orientation activities for Corps members in the states or command of the Defendant where he has worked.
    7. The Claimant avers that he was a key member of the Mobilization Department (Certification Unit) at the Directorate Headquarters of the Defendant between 1998 and 2007 before he was transferred to the Jigawa State office of the Defendant where he served dutifully and obediently before the unlawful and illegal acts of the defendant leading to the institution of this suit as shall be demonstrated anon.
    8. Claimant avers that on a number of occasions within the past fifteen years of active service in the Defendant, he has successfully undertaken several official assignments in different offices of the Defendant Lagos, Ogun, Bayelsa, Rivers, Edo, Delta, Kano and Nasarawa States, to mention just a few.

 

  1. The Claimant states that he was shocked and embarrassed when in 2010, he was orally informed by the Defendant Co-ordinator in Jigawa State that the Defendant has constituted a Committee on Circulation of fake NYSC Certificates and Operation of fake orientation Camp and that he would be summoned to appear before the Committee to answer to an allegation of issuance of fake certificates.
  2. Shortly after the fact stated in paragraph 14 supra and whilst sill ruminating over what he was told by the Jigawa State coordinator of the Defendant and wondering how and who could have levelled such false allegation against him, the Claimant was shocked and bemused when he received a letter dated 21/06/2012 and titled “QUERY” written by the Director General of the Defendant, wherein it was stated that the Claimant has been indicted by the Committee mentioned in paragraph 14 supra for circulation of fake NYSC discharge certificate as well as other sundry criminal issues.
  3. Convinced that the letter stated in paragraph 15, supra is completely misplaced and that he has never been involved in any or all the allegations contained therein, the Claimant wrote a reply dated 7th July, 2012 wherein he made it rather very clear, inter alia, that:
    1. He disputed the allegation contained in the Defendant’s letter and challenged the Defendant’s source of information;
    2. He was not given a fair hearing by the Committee constituted by the Defendant to investigate the allegations;
  • He was never given any opportunity by the Committee or the Defendant to defend himself;
    1. A proper investigation ought to be conducted into the matter;
    2. It will be inappropriate and unconscionable to take any disciplinary action against him, in view of the foregoing.

 

  1. As stated earlier, prior to the time the Claimant was queried, the Claimant was never summoned by the Defendant orally or otherwise to appearbefore its panel/committee constituted to investigate and or try him over the allegation of circulation of fake NYSC discharge Certificate as well as other sundry criminal allegations.

 

  1. The Claimant further states that throughout the duration of the trial or hearing mentioned above wherein the Panel/Committee members levelled all manners of criminal allegation or accusation against him, including the damning ones stated in the Defendant’s letter dated 21/06/13, he was not allowed to say a single word in his defence but was rather hushed by the members of the panel whenever he made an attempt to defend himself.

 

  1. Furthermore, in spite of the fact that the Claimant insisted that he had witnesses who were willing and ready to testify to his innocence, the members of the panel adamantly refused to hear him or his witnesses and informed him that there was nothing he could say in his defence.

 

  1. Based on the blatant mockery of law and order, abuse of official position, and downright travesty of justice committed by the panel as outlined in paragraphs 17, 18 and 19,supra, the panel came to a decision indicting the Claimant of all the criminal charges levelled against him and made their recommendations to the National Governing Board of the Defendant accordingly.

 

  1. On 11th November, 2013, the Claimant was issued with a letter dated 5th September, 2013 written by the Defendant wherein it was stated that the Defendant has been Compulsory Retired from Service by the Defendant based on the facts afore stated.

 

  1. As has been stated earlier, before the unfortunate events outlined herein before, the Claimant had been an outstanding staff of the Defendant who is hardworking, diligent and honest in his dealings.

2.3    Claimant contends that by allowing or permitting a Committee that is not a court of law to try and pass a verdict of guilt on him in respect of serious criminal allegations, the Defendant and its top executive have committed serious misconduct, gross abuse of office, desecration of official position, etc.

 

  1. The Claimant being sorely aggrieved by the actions highlighted above briefed his solicitors with instruction to write to the Presidency and ventilateClaimant’s complaints as well as request for a review of the Defendant’s decision, in compliance with the law creating it.

 

  1. In consonance with the instruction stated in paragraph 24 supra, the Claimant’s Solicitors wrote a letter dated 12thNovember, 2013 and addressed to the Defendant’s supervising Minister. Notice is hereby given to the Defendant to produce the original of the said letter before the trial of this case.

 

  1. When no response was received by the Defendant to the said letter, the Claimant instituted an action at the National Industrial Court as Suit No. NICN/ABJ/342/2013 and same was served on the Defendant.
  2. Upon being served with the originating processes in the said case and rather than respond to the serious issues of abuse of office and violation of Claimant’s right levelled against it in the said suit, the Defendant filed a Notice of Preliminary Objection wherein it prayed this Court to strike out the suit on the ground of non compliance with Section 20 of the NYSC Act which enjoins the Claimant to first appeal to the Presidency before commencing an action in court.
  3. After taking arguments in respect of the Objection, the Court (coram Hon. Justice M.N. Esowe) on 11th November, 2014 struck out the case.
  4. Claimant states that consequent upon the development stated in paragraph 29 supra and by which the merits of his case has not been decided or pronounced upon but same struck out on ground that his letter of appeal was wrongly addressed, his solicitors wrote to and served on the President and Commander-in-Chief of Nigeria a letter dated 11th November, 2014. During trial, Claimant shall found upon the letter as well as the courier company delivery report given to him by the courier company.
  5. The Claimant states that till date, neither the Defendant to whom the said letter has been turned over nor the President has responded to the said letter or granted/approved the simple request/demand contained therein.
  6. The Claimant states that as at 11th November, 2013 when he was served with the Defendant’s letter indicating that he has been compulsorily retired, his monthly salary, which includes allowances and other emoluments, was N98, 000.00 (Ninety Eight Thousand Naira) only.

 

  1. The Claimant avers that apart from the month of September, 2013, the Defendant has not paid him his salaries, allowances and other emoluments since the letter dated 7th September, 2013 was served on him.
  2. Additionally and despite the wrongful, unlawful and illegal act of the Defendant, its Chief Executive, Legal Adviser leading to Claimant’s compulsory retirement, the Claimant has not received any other form of payment, either in the form of salary, allowances, bonus, gratuity or pension, from the Defendant.
  3. The Claimant states that since the wrongful, malicious and capricious compulsory retirement inflicted on him by the Defendant culminating in the stoppage of his salaries, allowances and other emoluments, the Claimant has been undergoing serious financial difficulties, emotional trauma, psychological torture and an unstable state of health.
  4. The Claimant further avers that as a result of the travails that he is being made to go through following the action of the Defendant stated hereinbefore, he has not been able to meet up his family responsibility and obligation and this is having an adverse effect on his family members who depend largely if not entirely on him.
  5. Claimant contends that but for the illegal, unlawful and unconscionable acts or actions of the Defendant leading to his unjust, unwarranted, inexplicable and illegal compulsory retirement from the Defendant, he would have risen to the rank of PRINCIPAL INSPECTOR on salary GL 13 with total emolument at N155, 000. 00 (One Hundred and Fifty Five Thousand Naira Only).
  6. WHEREOF the Claimant claims against the Defendant as follows:
  7. A DECLARATION that it is an inalienable and Constitutional right of the Claimant to defend or be allowed to defend himself by calling or being allowed to call witnesses, be represented by counsel of his choice or submitting such materials as may be necessary to prove his innocence and or call witnesses in respect of or in relation to any criminal allegation levelled against him by the Defendant or anybody or person howsoever and which allegation culminated in the unlawful and illegal compulsory retirement of the Claimant from the Defendant;

 

  1. A DECLARATION that the wilful refusal, outright neglect and/or deliberate failure of the Defendant, acting directly by itself or through its officers, agents, Committee(s) or Panel(s) by whatever name called in preventing or otherwise inhibiting the Claimant from defending himself in terms of representation by counsel of his choice, calling witnesses or submitting relevant materials necessary to establish or prove his innocence in respect of serious criminal allegations levelled against him by the Defendant and which led to his compulsory retirement from the Defendant is a gross violation of the Claimant’s right to fair hearing as guaranteed by the 1999 Constitution;
  • A DECLARATION that it is illegal, unlawful, unconstitutional, immoral, unjust, unfair, unconscionable, unjustifiable, an abuse of official position/office and a gross violation of the fundamental right of the Claimant to fair hearing for the Defendant to constitute a Panel, Committee or body by whatever name or nomenclature with jurisdiction try and pass a verdict or sentence on him.
  1. A DECLARATION that the allegations of Corruption, Printing and Circulation of fake NYSC Certificates, Falsification of Records, Bribery, Corruption, Stealing, False Claim against the Directorate, etc, levelled against the Claimant and over which he was indicted and thereafter compulsorily retired from Service, are serious criminal allegations/indictments that only a court of competent jurisdiction can adjudicate upon and pronounce on;
  2. A DECLARATION that the Committeeon circulation of fake NYSC certificates and operation of fake orientation camp set up or

constituted by the Defendant, as well as the Defendant’s Senior Staff Committee which either severally or jointly investigated, tried, indicted and or passed a “guilt” verdict on the Claimant and ultimately recommended his compulsory retirement from the Defendant’s services is without any power, competence or jurisdiction in law to so act and or pass the said verdict recommendation.

  1. A DECLARATION that the proceedings of the Committeeon circulation of fake NYSC certificates and operation of fake orientationcampset up or constituted by the Defendant as well as the Defendant’s Senior Staff Committee which either severally or jointly investigated, tried, indicted and or passed a “guilt” verdict on the Claimant in respect of serious criminal allegations without affording him the full opportunity of fair hearing, are irregular, improper, unlawful, unconstitutional, unjustifiable, null and a violation of the Claimant Constitutional right to fair hearing;
  • A DECLARATION that the letter dated 5th September, 2013 issued by the Defendant and addressed to the Claimant by which the Defendant purported to compulsorily retire the Claimant is a product of an illegal, unlawful and wrongful act, having been issued in gross violation of the Public Service Rules as well as the Constitution of the Federal Republic of Nigeria 1999 (as amended) and, therefore, of no effect whatsoever;
  • A DECLARATION that the compulsory retirement of the Claimant from the service of the Defendant is unjustifiable, high hand, immoral, incomprehensible, unconscionable, unlawful, illegal, unconstitutional and a gross violation of the Claimant’s Constitutionals right to fair hearing as enshrined in the 1999 Constitution (as amended).
  1. AN ORDER setting aside the decision and or recommendation of the Committee on Circulation of fake NYSC certificates and Operation of fake Orientation camp and Senior Staff Committee constituted by the Defendant which jointly or severally investigated, tried, indicted and or passed a “guilt” verdict on the Claimant in respect of serious criminal allegations and ultimately recommended his compulsory retirement from the Defendant’s service;
  2. AN ORDER SETTING ASIDE the Defendant’s letter of Compulsory Retirement From Service addressed to the Claimant and dated 5th September, 2013, which purported to Compulsorily retire the Plaintiff on the bases of the decision and or recommendation of the Committee on Circulation of fake NYSC certificates and Operation of fake Orientation camp and Senior Staff Committee constituted by the Defendant for being unjust, wrongful, invalid, illegal, null, void and of no effect whatsoever;

 

 

  1. AN ORDER RE-INSTATING the Claimant to his employment and position/post with the Defendant without prejudice to normal promotions and payment of allowances and other entitlements and allowances that the Claimant might be entitled to in the course of his employment in the service of the Defendant;

 

  • AN ORDER directing the Defendant to pay to the Claimant forthwith all the arrears of his salaries and other emoluments due to him in the service of the Defendant from September, 2013 when he was wrongfully and unlawfully retired compulsorily till the Claimant is reinstated to his position in the Defendant.

 

  • 10% INTEREST on the salary arrears and other emoluments due to the Claimant from September, 2013 when he was wrongfully, illegally and unlawfully retired from the Defendant.

 

  • 15% INTEREST on the judgment sum (per annum) until judgment debt is finally liquidated.

 

  1. A SUM OF N2.300, 000.00 (Two Million, Three Hundred Thousand Naira) Only, being the cost of this suit.

 

DATED THIS 24TH DAY OF DECEMBER, 2014

 

It is without any doubt or fear of contradiction that the two statements of facts reproduced above have established that the cause of action in the two suits is same.

In the considered Ruling of 14/12/2014, i.e Exhibit ‘A’ this Court found that the Claimant had not complied with condition precedent to approaching the Court and as such the case was premature and has robbed the Court the jurisdiction to try it. The Court upheld the preliminary objection and dismissed the case. The Defendant/Applicant insisted that the Ruling contained in Exhibit ‘A; which has not been appealed against by the Claimant/Respondent will operate to estopped this Court from entertaining this suit as the said ruling has settled the matter. The Claimant has on the other hand copiously submitted that the Ruling being a decision on preliminary objection cannot operate to preclude this Court from entertaining this action, as the entire claim has not undergone trial and the decision of the Court was not final to make the Court functus officio. It is to be noted that the Supreme Court has in a long line of cases settled issue of when a Court can be said to be functus officio in respect of a matter. It is when the Court has fulfilled or accomplished its function in respect of that matter and it lacks the potency to review, re-open or revisit the matter. Once a Court delivers its judgment, decision or made an order in a matter, it cannot review or revisit the said judgment, decision or order as it lacks jurisdiction to do so.  This principle was based on the need to have an end to litigation.  UKACHUKWU V UBA (2005) 18 NWLR (PT 956) 1; ANYAGBUNAM V A-G ANAMBRA STATE (2001) 6 NWLR (PT 710) 532; MOHAMMED V HUSSEINI (1998) 14 NWLR (PT 584) 108. The test of determining whether an order, judgment or decision of Court is final or interlocutory lies in the nature of the order and not the nature of the application. In EBOKAN V EKWENIBE & SONS TRADING COMPANY, Kalgo JSC (as he then was) said as follows:-

‘‘It is well established by a myriad of decided cases both in England and in this country that there are two distinct tests to be applied in deciding whether  a decision of a court of first instance is interlocutory or final. The to classical authorities upon which these tests are formulated are BOZSON V ALTRINCHAM U. D. C. (1903) 1 K.B. 547 and SALAMAN V WARNER (1891) 1 QB 734.

‘’there is no doubt that looking at the two test in Bozon’s and Salaman’s case set out above one would say that the principles enunciated therein are dissimilar to each other. In other words they are not saying the same thing. For while the test in Bozon’s case looks at the nature of the of the order made, the test in Salaman’s case looks at the nature of the proceedings in which the order is made.

In England the position is now very clear in that the nature of the order test in Bozon’s case is very much preferred and applied. To this extent, it would appear that the Bozon’s case has overruled Salaman V Warner case. In this country, the nature of the order made test has been approved and applied in courts, in the case of Omonowa V Oshodi (1985) 2 NWLR (PT.10) 924 @ 937 Karibi-Whte J. S. C. in his lead Judgment said:

‘In  standard Discout Co. V La Grange  and Salaman V Warner, the test applied was the nature of the application to the court, and not the nature of the order made. In Shelter Rex and Co. V Ghosh (1971) 2 All ER 865, proceedings in which the order is made Denning M. R. considered the test of the nature of the order applied in Bozoan V Altrincham U. D. C. (supra) and observed that although Lord Alverstone CJ’s test in Bozon’s case may be right in logic. Lord Esther’s test of the nature of the application in Salman V Warner  was right in experience. Bozon V Altrincham U. D. C. (supra) has been approved and applied in our courts and I think this is good reasoning.’’

I also agree with this view. Furthermore this was demonstrated by the number of decided cases in this country after the Bozon’s case, some of which include:-

Blay V Solomon (1947) 12 WACA 175, Ude V Agu (1961) 1 SCNLR 98, (1961)  All NLR 65, Chike Obi V D.P. P. (No. 2) (1961) all NR 458 (1961) SCNLR 164, Adegbenro V Akintola (1962) 1 All NLR 442, Aqua Ltd V Ondo State Sport Council (1988) 4 NWL (PT 91) 622, Akinsanya V U. B. A. Ltd (1986) 4 NWLR PT 35) 273, Omonuwa V Oshodi n (supra) Akaniya Oguntimehin V Omotoye (1956) 2 FSC 56, Afuwape & Ors. V Ahodipe & Ors (1957) 2 FSC 62, (1957) SCNLR 265,  Alaye of Effon V Fasan 1958) 3 FSC 68, Ojora & Ors V Odunsi (1964) NMLR 112.

Now having established that the appropriate test is that of nature of the order made that will determined whether the ruling of this Court in Exhibit ‘A’ is a final or interlocutory decision. I shall proceed to consider the Ruling in exhibit ‘A’ and see whether it is a final or interlocutory. As pointed out earlier in this ruling upon being served with originating Court processes commencing Suit No. NICN/ABJ/432/2013, the Defendant who is Defendant in that case and the present case, filled a notice of preliminary objection challenging the competency of the suit and the jurisdiction of the Court to entertain same. The objection was based on the ground that condition precedent to invocation of the Court’s jurisdiction has not been fulfilled. The Claimant in suit no NCN/ABJ/432/2013, who is the Claimant in this suit filed counter affidavit and written address in opposition to the notice of preliminary objection. The Court after hearing Counsel from both sides in a considered ruling dismissed the Claimant’s action in suit No. NICN/ABJ/432/2013 on the ground of lack of jurisdiction. It is to be noted that with the ruling of the Court dismissing the Claimant’s suit due to lack of jurisdiction the rights of the parties have been disposed up in so far as Suit NICN/ABJ/432/2013 is concerned. Consequently, with the dismissal of the suit, this Court has become functus officio and lacks the jurisdiction to deal with the matter again as in the present action. This is essentially because the court cannot sit on appeal on its own decision, having not been vested with any power so to do. The Constitutional and statutory jurisdiction this court is to hear appeals from lower tribunal. It cannot hear appeal from its own decisions. Thus, having finally decided a case before it, it becomes functus officio as to that case. Thus, once a court delivers its decision on a matter, it cannot revisit or review or set aside the said judgment except under certain conditions. More importantly, a court lacks jurisdiction to determine an issue where the proceedings relating to the issue or where the proceedings relating to the issue is an abuse of court process. UKAHUKWU V UBA (2005) 18 NWLR (PT 956) 1 MOHAMMED V HUSSEINI 1998 14 NWLR PT 584 108. Once an issue or issues have been raised and determined by the Court between the litigating parties, the court becomes functus officio to either direct or allow the parties to re-open the same issues before it for re-litigation.

It is without any doubt that the two statements of facts reproduced above have established that the cause of action in the two suits is the same i.e contesting validity of compulsory retirement

In the considered Ruling of 14/12/2014, i.e Exhibit ‘A’ this Court found that the Claimant had not complied with condition precedent to approaching the Court and as such the case was premature and has robbed the Court the jurisdiction to try it. The Court upheld the preliminary objection and dismissed the case. The only option opened to the Claimant is to file an appeal against the decision and not to file a fresh action. The fresh action will amount to an abuse of the process of this Court. See SARAKI V KOTOYE

The Claimant has copiously submitted that the Ruling being a decision on preliminary objection cannot operate to preclude this Court from entertaining this action, as the entire claim has not undergone trial and the decision of the Court was not final to make the Court functus officioo. This submission is a complete negation of the approved test of determining a final or interlocutory decision i.e nature of order and not nature of proceeding as approved by the Supreme Court in EBOKAN’S case (supra).

The Claimant in this suit has made a fruitless journey by filing a fresh suit on the same cause of action that has been dismissed instead of filing an appeal to the Court of Appeal to have the order upturned/setting aside. I have no power to revisit, review or sit on appeal on what had been decided. Even if the ruling of 14/12/14 was a nullity I have not been asked to set it aside. In view of the foregoing, the ruling of this Court made on 14/12/2014, as it stands will operate to preclude this Court from entertaining this suit. I so hold. Issue one has been resolved in favour of the Defendant/Applicant.

 

ISSUE TWO

 

The position of Counsel for the Defendant/Applicant on issue two is that having regard to the processes filed in this suit, this Court has no jurisdiction to entertain this action. The reason being that the action is statute barred same having been caught by section 2 (a) of the Public Officers Protection Act. According to Counsel the action was filed on 24th day of December 2014, one year three Months and seven days after the accrual of the cause of action. Counsel submitted this action was brought outside the period prescribed by law the action is therefore statute barred. The Counsel for the Claimant/Respondent n the other hand submitted that this action is not statute barred. According to Counsel in determining whether a suit is statute barred or not is the statement of claim that will be scrutinize counsel referred the court to statement of fact filed on 24/12/2014. And submitted that the claimant is seeking to enforce his fundamental right to fair hearing i.e the suit is for enforcement of fundamental right which cannot be affected by any limitation statute whatsoever vide  Order 3 Rule 1 of the Fundamental Rights (Enforcement Procedure Rules). Counsel submitted that enforcement of Fundamental Right can be commenced through any means whatsoever SUNDAY V. ABDULAHI (1989) 4 NWLR (PT. 116) 387, OKHOE V. GOVERNOR OF BENDEL STATE (1990) 4 NWLR (PT. 1444) 327 and MINISTER OF INTERNAL AFFAIRS V. SHUGABA (1982) 3 NCLR 915. Counsel referred to paragraphs 15, 16, 17, 18, 19, 20, 21, 23 and 36 of the statement of facts and submitted that the averments circumscribe the claimant’s suit within the confines of Fundamental Rights Enforcement Procedure Rules. Counsel submitted the provisions of Public Officers Protection Act will not apply Counsel further submitted it is not in all cases in which the public officer is a Defendant that public officers protection Act can be invoked as a shield. Where the suit against Public Officer borders on gross abuse of office, serious misconduct and desecration of office or position etc the provision of section 2 (a) of the Public Officers Protection Act pales into insignificance. It is the submission of counsel that the decision taken by a committee to compulsory retire the Claimant without giving him opportunity to defend himself violate his Constitutional right to fair hearing as contained in section 36 (1) of the 1999 Constitution (as amended). Counsel submitted that the act of the Defendant/Applicant is outside the colour of its office or outside its statutory or constitutional duty as shown above. Counsel urged court to hold that the suit is not statute barred. Counsel also contended that assuming without conceding that the provision of section 2 (a) of the Public Officers Protection Act is applicable to this suit, it is erroneous to contend that this suit was instituted “one year three months and seven days after the accrual of cause of action” The said contention was based on misconception of law and facts or have chosen to deliberately misrepresent fact to mislead the court. This submission was based on the fact that from the originating process filed by the Claimant he was in court with the Defendant/Objector for a period of 16 months 24 days from 17/12/13 when he instituted suit No. NICN/ABJ/342/2013 and 11th November, 2014 when the same suit was struck out or dismissed. Counsel submitted that in computing the limitation period the time wherein parties slug it out in court is usually left out of reckoning. Counsel submitted this court should resist the invitation to rely on paragraph 3(1) of the affidavit in support of the notice of preliminary objection and Exhibit ‘B’ attached there to coming to the conclusion that the cause of action accrued on the 12th September, 2013 as against 11th November, 2013 stated by the Claimant in paragraph 27 of the statement of facts. This submission was based on the grounds that in determining of cause of action in this statement of facts filed by the Claimant and nothing more. Counsel submitted it is not allowed to introduce extraneous material at the point of preliminary objection in affidavit.

REPLY ON POINT OF LAW BY THE CLAIMANT/APPLICANT.

Replying on point of law the Defendant/Applicant referred the court to a 5 paragraphs further and better affidavit and the written address on point law. Counsel adopted the written address on point of law and urged the Court to consider it as argument on point of law. Counsel submitted that the submission that time will not run when the Claimant was in court was misconceived the effect of dismissal of the Respondent’s earlier suit is that there has been nothing pending before the Court to be reckoned with. The order of dismissal finally disposed of the case. On fundamental Right Counsel submitted that the present action as it is constituted is not a fundamental right action, the issue of fundamental right is incidental or ancillary to the main complaint which is compulsory retirement from service.  It is further submitted that section 36 of chapter 1V of the Constitution does not contemplate case of employment or retirement matters and Courts have severally frowned at bringing such issues under fundamental right. On issue of Malice counsel submitted that it cannot be raised at stage of considering statute barred. On technicalities counsel submitted that the issue raised in the preliminary objection is issue of jurisdiction which is fundamental to the determination of the suit. The issue can be raised at any stage even on appeal at Supreme Court for the first time.

I will start consideration of this issue by dealing with the preliminary issue of appropriateness of supporting notice of preliminary objection with an affidavit. Ordinarily a notice of preliminary objection raising issue in limine is raising of point of law before the Court. That is to say the objector is relying on provisions of law only in raising the objection and is not relying on any facts. However, where the facts are not in dispute an affidavit can accompany a notice of preliminary objection. But in an application regarding statute of limitation of action, the law is settled, it is the statement of claim that will be looked at to determine the period of limitation. See IBRAHIM V JUDICIAL SERVICE CPOMMITTEE OF KADUNA STATE (supra  ).

The Claimant has also contended that statute of limitation will not apply to this suit because the period of litigation is usually excluded. This position of the law is dependant on when the suit has not been finally determined by the Court. However, in this case the Ruling of this Court that determined suit No. NICN/ABJ/432/2013 is a final decision in which the Claimant cannot relist. The non applicability of period of litigation is only valid when the case can be relisted before the Court i.e when the suit has not been finally terminated.

The submission of Counsel for the Claimant that his action is based on Enforcement of Fundamental Right cannot hold water. The reason being that for an action to be considered to be within the fundamental Rights it has to be the main claim. In the present case the main grouse of the Claimant was on compulsory retirement from service of the Defendant. I agree with the Defendant’s Counsel that this action is an employment case and not a Fundamental Right Enforcement case. See JACK Vs. UNIVERSITY OF AGRICULTURE MAKURDI (2004) 5 NWLR (Pt.865) 208, (2004) 1 SC (pt.ii) 100. The fallacy of the contention that this action is for enforcement of fundamental right is more glaring when one closely scrutinize the claim before the Court, as it will be seen that the claim boils down to issues surrounding disciplinary action taken against the Claimant which culminated in his compulsory retirement from the service of the Defendant. This suit is therefore an employment case and not action based on enforcement of fundamental right. This assertion is supported by the fact that the Claimant commenced his action by way of Complaint and not through application under the Fundamental Right Enforcement Rules. If Counsel truly believes that the action is for enforcement of fundamental right he would have appropriately invoked the provisions of section 46 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Employment matters falls within the common law class of actions and not within the constitutional class of actions. In view of this finding, I hold that this action is not for Enforcement of Fundamental Right as the Counsel for the Claimant wants the Court to believe.

Coming to the issue of statute barred, this action was commenced on 24/12/2014. In paragraph 21 of the statement of facts the Claimant averred that on 11th November 2013, he was issued a letter dated 5th September 2013, wherein he was compulsorily retired from service. It is now obvious from the endorsement on the complaint and statement of facts paragraph 21 to be precise that this action has not been brought within three months following the act complained of. i.e compulsory retirement. If the Defendant is found be:

  1. Public officer
  2. Acting in pursuance or execution or intended execution of any law or authority, or in respect of any alleged neglect or default in execution of any such law, duty or authority

Then the action is statute barred since it has not been brought within three months. The court would have no jurisdiction to entertain the action which must then be struck out. See EGBE V ADEFARASIN (1985) NWLR (Pt.3) 549, EGBE V ALHAJI (1990) NWLR (Pt.128) 546.

Now, the question to ask and answer is the Defendant a Public officer the answer to this question is not farfetched, it is in the affirmative. This fact has not been disputed by the Claimant. The apex Court of the Land has in the case of IBRAHIM Vs JSC (1998)14 NWLR (Pt.584) 1, held that ‘any person’ used in section2(a) of Public Officewrs Protection Act of Northern Nigeria, which is impair material with the section 2(a) of the Public officers Protection Act (Federal), connotes a ‘natural person’ that is to say ‘human being’  and an ‘artificial person’ such as corporation sole or public bodies corporate or incorporate. The Defendant in this being body corporate is a public officer in line with the decision of the Supreme Court.

The next question is whether the Defendant was acting in pursuance or execution or intended execution of any law or of any public duty or authority the averment in the statement of facts are relevant. Paragraphs 1, 4, 6, 8. 9, 12, 13, 14, 15, 17, 18, 21, 24 and 37 of the statement of facts are relevant in determining this question. It is undisputable as can be gleaned from the statement of facts before the Court that the Claimant was employed by the defendant and during the period of his employment he was queried for misconduct, thereafter tried by a disciplinary committee for misconduct and recommended by the disciplinary committee for retirement and he was accordingly retired from the service of the Defendant. It was the exercise of the disciplinary action taken against the Claimant that led to institution of this action. In view of the foregoing I hold that the Defendant in compulsorily retiring the Claimant from service was performing public duty and the action is covered by the public officers Protection Act. See EGBE V ADEFARASIN (supra), ADIGUN V AYINDE (1993) 11 SCNJ 1, EGBE V ALHAJI (supra), EGBE V YUSUF (1992) 6 SCNJ part 2, 263, ODUBEKO V FAWLER (1993) 9 SCNJ 185.

In view of the foregoing, the preliminary objection succeeds. This Court is functus officio in respect of this suit in view of the ruling of 14/12/14. Also the suit is statute barred for having been commenced beyond the moths period allowed by section 2(a) of the Public Officers Protection Act.

Consequently, this suit is hereby struck out.

I make no order as to cost.

 

 

Sanusi Kado,

Judge,

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