IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
Suit No: NICN/OW/11/2016
Petitioner: Mr. I. O. Ozoemenam
Respondent: Central Bank of Nigeria
Date Delivered: 2017-02-23
Judge(s): HONOURABLE JUSTICE O. Y. ANUWE
Rulings Delivered Representation: Ndaji Chidozie, with him L. A. Amanze for the Claimant/Respondent Femi Onibalusi for the Defendant/Applicant
RULING/JUDGMENT
This action was commenced by way of complaint date and filed the 29th day of April 2016 wherein he claimed against the Defendant as follows:
- A Declaration that the words ‘…appraisal rating over the last 3 years’ within the meaning of the Internal Memorandum issued by the Defendant titled ‘INCENTIVE FOR EARLY RETIREMENT SCHEME’ meant and referred to the last three appraisal service years preceding the retirement date of their staff within that scheme.
- A Declaration that the Claimant is entitled to have his last three due appraisal service years i.e. 1999, 2000 and 2001 in reckoning as his appraisal period within the scheme.
- A Declaration that the Claimant is entitled to his promotion from Personal Secretary 1 to a Senior Personal Secretary within that scheme and for purposes of the computation of his pension entitlements.
- An Order of court commanding the Defendant to promote the Claimant from the grade of a Personal Secretary 1 to a Senior Personal Secretary and/or the next upper grade for purposes of the computation and payment of his pension entitlement
- An Order of Court that the Claimant be paid all arrears of pension payment outstanding from his retirement date to date on account of the difference between the pension entitlement of a Personal Secretary 1 and a Senior Personal Secretary in the Defendants employ.
- N10,000,000.00 (Ten Million Naira) as general damages for breach of contract.
By a Motion on Notice brought pursuant to Section 2a of the Public Officers’ Protection Act, Section 52 of the Central Bank of Nigeria Establishment Act 2007, and Section 19(B) and (E) of the National Industrial Court Act 2006, the Defendant/Applicant’s counsel sought an order dismissing this suit for lack or jurisdiction, as the cause of action is stale, extinguished and statute barred.
The grounds upon which the application is brought are as follows:
The declarations, orders of injunction and damages sought by the claimant relates to a cause of action which arose in June, 2003 and this suit was filed in on 29/4/2016.
- The cause of action is in respect of the management’s execution of the Internal Memorandum of the defendant in pursuance of the provisions of S. 7 of the Central Bank of Nigeria (Establishment) Act of 2007.
- By the provisions of S. 2(a) of the Public Officers’ Protection Act, Cap P41, Laws of the Federation of Nigeria, 2004, the National Industrial Court have no jurisdiction to hear this suit more three (3) months after the cause of action arose.
iii. The institution of this suit is contrary to the provisions of S.52 of the Central Bank of Nigeria (Establishment) Act, 2007. In support of the motion is an affidavit of 11 paragraphs deposed to by one Peter Duru. In the accompanying written address, the Defendant/Applicant formulated two issues for the determination of the Court to wit:
Whether this Honourable Court has jurisdiction over this suit instituted on 29/4/2016 when the cause of action arose in June 2003.
- Whether in the light of S.52 Central Bank of Nigeria (Establishment) Act, 2007 this Honourable Court has jurisdiction over this matter pertaining to the execution and implementation of the terms of the Internal Memorandum of the defendant being in pursuance of the powers conferred on the Defendant by S. 7 of the Central Bank of Nigeria (Establishment) Act, 2007.
In arguing issue one, it is counsel’s submission that this court lacks jurisdiction to hear this suit which was instituted on 29/4/2016, as the cause of action arose in June 2003. According to counsel, by the provisions of S. 2(a) of the Public Officers Protection Act, the Claimant is expected to institute this suit within 3 months from the date the cause of action arose. Section 2 of the Public Officers’ Protection Act Cap P41 Laws of the Federation 2004 provides as follows:
Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provision shall have effect:
(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.
(b) Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison”.
It is counsel’s submission that even though the above provision makes the law applicable to ‘any person’, a person in law includes a statutory body like the Defendant. Refer to S. 18 of the Interpretation Act Cap 123, Laws of the Federation of Nigeria, 2004 which defines ‘person’ as including” any-body of persons corporate or unincorporated;
” Refer also to CBN vs. Ukpong (2006) 13 NWLR (Pt. 998) 555 at 569/570 par F/H per Fabiyi, J.C.A. (as he then was) as follows:
“In Ibrahim vs. Judicial Service Committee Anor (1998) 14 NWLR (Pt. 584) 1 at 36 the Supreme Court, per Iguh, JSC, pronounced as follows on meaning of ‘person- “Without, therefore, seeking guidance from anywhere else, it seems to me plain that the definition of the word ‘person’ in the legal sense under the Nigerian law is not limited to natural person or human beings only as the appellant now vigorously appears to contend. It clearly admits and includes artificial persons such as a corporation sole, company or anybody or any-body of persons corporate or incorporate. In this regard, and again without making reference to the decisions of any foreign jurisdiction, it is clear to me that it cannot be right that the definition of ‘any person’ in the Public Officers’ (Protection) Law of Northern Nigeria, 1963 must be read as meaning any person in any limited sense, that is to say; as referring only to natural persons or human beings. I am not, with respect, prepared to accept this interpretation as well founded. This is because to ascribe to those words any limited meaning would tantamount to importing into the words of a statute, such qualifying or additional words that were not provided there in the first instance by the legislature. This exercise the courts are not permitted in law to indulge in.”
To counsel, the act which the Claimant complains of being the cause of action pertains to the execution of the terms of the Internal Memorandum, a management circular of the Defendant dated 8/11/2001 on the Claimant’s pensions and entitlements. The said Internal Memorandum being a management circular was issued by the Defendant in pursuance of the management duties or powers of the Defendant under the provisions of S. 7 of the Central Bank of Nigeria (Establishment) Act, 2007 which states as follows:
“( 1) The Governor or in his absence, one of the Deputy Governors nominated by him shall be in charge of the day to day management of the bank and shall be answerable to the Board for his acts and decisions.
(2) The provisions of section 6 (1) of this Act shall apply in relation to the general policy pursued or intended to be pursued on any administrative matters including staff pensions, salaries, allowances and any other similar matters. ” Thus the action of the Claimant in this matter is an action commenced against the act of Defendant “done in pursuance or execution” of the law in S. 7 of the Central Bank of Nigeria (Establishment) Act, 2007. Counsel submitted that the said action of the Defendant comes under the purview of actions of public officers protected under S.2 (a) of the Public Officers Protection Act. In this matter the Claimant/Respondent pleaded in paragraph 8 of the statement of facts establishing cause of action (statement of facts) ‘ Exhibit A, that he wrote a letter dated 14/3/2002 to demand that his entitlements be calculated on the grade of Senior Personal Secretary instead of Personal Secretary 1 which the Defendant used to calculate the entitlements.
By the same pleading of the Claimant in paragraph 8 of the statement of facts, the Claimant stated that the Defendant wrote a letter dated 25/6/2003 (Exhibit A 1) in reply to another letter of his where the Defendant rejected the said demand of the Claimant. Exhibit A 1 is one of the documents attached to the statement of facts filed by the Claimant in this case. Counsel submitted that at the stage of the issuance of Exhibit A 1 to the Claimants’ solicitors, the cause of action have arisen. By the terms of Exhibit A 1 the Defendant clearly rejected the assumptive claims of the Claimant to which his claims in this suit is predicated.
According to counsel, the Claimant emphatically admitted this in paragraph 8 of the Exhibit A (statement of facts) when he stated that ””””’ Rather the defendant had via her reply letters respectively dated June 25, 2003 Ref No. HRD/DD/CBO/40/6/03; ” continued in defiance and denial of the claimant’s claim'” Refer to Archianga vs. A. G. Akwa Ibom State (2015) 6 NWLR (Pt. 1454) 1 @ 55 par. F-H per Garba, J.C.A. as follows:
“In law the period of limitation begins to run from the date on which the right or cause of action accrued to the party entitled to it and against another who is responsible for the grievance in respect of which the cause of action arises. To determine whether an action or cause of action is statute barred, all that is required for the court to do is to examine the writ of summons or other initiating process of the action and statement of claim wherein the facts as to the date when the wrong complained of and giving rise to the cause of action was committed and then comparing it with the date on which the writ of summons or other process initiating the action was filed. If the date on which the action was initiated was beyond or outside the time or period prescribed, and limited by the Limitation Law, then the action is statute barred by the law and so it cannot be maintained.”
Counsel submitted that while the cause of action had arisen in June, 2003 the Claimant filed this suit on 29/4/2016, a period of about 154 months (12 years and 8 months) after the cause of action had arisen. This is clearly more than the 3 months prescribed by S. 2(a) of the Public Officers Protection Act, within which the Claimant ought to have instituted this suit. By dint of this fact counsel submitted that this suit as filed before this Court is stale and statute barred. Refer to CBN vs. Ukpong (2006) 13 NWLR (Pt. 998) 555 at 568 G-H per Fabiyi, J.C.A. (as he then was) as follows:
‘A statute of limitation as the one reproduced above removes the right of action and leaves a plaintiff with a bare and empty cause of action which he cannot enforce if such is instituted outside the three months statutory period allowed by the law. Proceedings cannot be instituted outside the prescribed period. Any action instituted outside the prescribed period will be statute-barred. See Obiefuna vs. Okoye (1961) 1 All NLR 357; Fadare vs. A-G., Oyo State (1982) 4 SC 1.” And at 572 par F-H per Augie, J.C.A. held as follows:
“The Supreme Court made it emphatically clear in Ibrahim vs. Judicial Service Committee Anor (1998) 14 NWLR (Pt. 584) 1 @ 13, that the word “person” is not limited to natural persons or human beings but “admits and includes artificial persons such as a corporate sole, company or any-body of persons corporate or incorporate.” In this case, the lower court failed to follow the decision of the Supreme Court, and arrived at an erroneous decision that cannot be allowed to stand. The Central Bank of Nigeria is a “person” corporate and the Respondent’s suit filed outside the three month limitation period was statute barred. It is trite law that where a statute provides for the bringing of an action within a prescribed period in respect of a cause of action that had accrued to a Claimant, proceedings cannot be brought after the time prescribed by such a statute – see Ogoh vs. ENPEE Ind. Ltd (2004) 17 NWLR (Pt. 903) 449 and Araka vs. Ejeagwu (2001) FWLR (Pt. 36) 830; (2000) 15 NWLR (Pt. 692) 684. What is more, any proceedings conducted without jurisdiction, as in this case, is a nullity – see Akeem vs. University of Ibadan (2003) 10 NWLR (Pt. 829) 584″ (emphasis supplied by counsel).
He therefore urged the Court to grant this application and dismiss this suit with substantial costs as prescribed under S. 2(b) of the Public Officers Protection Act.
In arguing issue two, it is the submission of counsel that this Court has no jurisdiction over this matter which pertains to the execution and implementation of the terms of the management circular, Internal Memorandum of 8/11/2001, being statute barred by the provisions of S. 52 Central Bank of Nigeria (Establishment) Act, 2007 which provides thus: “52 Protection against adverse Claims: (1) Neither the Federal Government nor the Bank nor any officer of that Government or Bank shall be subject to any action, claim or demand by or liability to any person in respect of anything done or omitted to be done in good faith in pursuance or in execution of or in connection with the execution or intended execution of any power conferred upon that Government, the Bank or such officer, by this Act.
(2) For the purpose of this section, the Minister or any officer duly acting on his behalf shall be deemed to be an officer of the Federal Government and the Governor, any Deputy Governor of the Bank or other employee shall be deemed to be an officer of the Bank. By the above cited provision the Claimant is precluded from bringing this action against the defendant as it is a claim in respect of management decision via the Internal Memorandum of 8/11/2001 which is an act done with respect to the pensions and other terminal entitlements of the Claimant in pursuance of the powers conferred on the Defendant by S. 7 of the Central Bank of Nigeria (Establishment) Act. Counsel submitted that this is a management decision made and executed in good faith without any prejudice or ill will to the Claimant. He referred and relied on paragraph 9(i) and (ii) of the affidavit in support to this effect.
The act is in respect of the execution of the terms of the Internal Memorandum which in turn is in pursuance of the management powers of the Defendant as provided in S. 7 of the Central Bank of Nigeria (Establishment) Act. It is submitted that the main cause of action of the Claimant is his complaint on the pensions and entitlements payable to him by the Defendant on his retirement. By S. 7 of the Central Bank of Nigeria (Establishment) Act, the Defendant is by law empowered to apply her “general” policies on “any administrative matters including staff pensions, salaries, allowances and any other similar matters.”
To counsel, by dint of the above stated circumstance and the provisions of S. 7 of the Central Bank of Nigeria (Establishment) Act the Claimant offends the provisions of S. 52 of the Central Bank of Nigeria (Establishment) Act which excludes the Defendant from any liability on the execution of its management decisions as its said actions upon which this suit is predicated by the Claimant particularly when the action of the Defendant was done in good faith without any prejudice to the Claimant.
Counsel commended the facts stated in paragraph 9(i) and (iv) of the affidavit in support, to the effect that the application of the policy on the years of the appraisal ratings that are applicable being 1998, 1999 and 2000 is not peculiar to the Claimant being a policy of general application to all members of staff that so qualified for the Incentive for Early Retirement Scheme. He referred to ExhibitA2 of the affidavit in support which the Claimant has pleaded and attached to his list of document he is relying upon in this suit.
He humbly urged the Court to believe the facts so stated in paragraph 9 (i) and (ii) of the affidavit in support to the effect that the implementation of the policy as it concerns the Claimant was in good faith and without any prejudice or ill will to his person but of general application to all members of staff of the Defendant. This is particularly so as the Claimant have been duly paid his entitlements as agreed by the Defendant based on the operative Personal Secretary 1 grade of the Claimant/Respondent at the time of his qualification and retirement. Refer also to paragraph 9(iii) of the affidavit in support.
Counsel submitted that this action of the Claimant ought to be dismissed with cost, for lack of jurisdiction as the action is statute barred, both on the basis of the provisions of S. 52 of the Central Bank of Nigeria (Establishment) Act, 2007 and S. 2 of the Public Officers Protection Act,.
In opposition to the application of the Applicant, the Claimant/Respondent filed a written address dated 14/9/2016 but filed on 28/9/2016. In the said address, the Claimant’s Counsel contended that the Applicant’s argument is untenable and has no force or merit in situations where the law sees the damage or injury complained of as continuing. The pri
