IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: FRIDAY 5TH OCTOBER 2018 SUIT NO. NICN/OW/82/2016
BETWEEN:
MR. OBIAJUNWA GEOFREY UWANI………………CLAIMANT/APPLICANT
AND
1. CIVIL SERVICE COMMISSION, IMO STATE
2. THE HEAD OF SERVICE, IMO STATE DEFENDANTS/
3. THE ACCOUNTANT GENERAL, IMO STATE APPLICANTS
4. THE GOVERNMENT OF IMO STATE OF NIGERIA
REPRESENTATIONS:
COUNSEL TO THE PARTIES ABSENT.
RULING
NOTE: This application was completely heard at Owerri Judicial Division but ruling delivered at Enugu Judicial Division pursuant to Order 62, Rule 12(1) of the NICN Rules, 2017 due to my transfer before its delivery.
INTRODUCTION
The suit was commenced on 14th December 2016 via a Complaint. It was accompanied with a Statement of Facts wrongly titled “Statement of Claim”. The reliefs claimed in the Statement of Facts are as listed hereunder:
a. A declaration by the Honourable Court that the employment and appointment of the claimant by the Civil Service Commission still subsists.
b. A declaration by the Honourable Court that the claimant, Obiajunwa Geofrey U. has not attended [sic] the statutory retirement age of 60 years in the service.
c. A declaration by the Honourable Court that the purported letter of retirement served on the claimant purporting to be Obiajunwa Geofrey U. is null and void.
d. An Order of the Honourable Court setting aside and/or invalidating the letter dated 23rd of October 2015, captioned “Notice of Retirement from Imo State Civil Service; corrigendum” directed to the Claimant bearing Obiajunwa G.U.
e. An Order of the Honourable Court directing the 1st, 2nd and 4th Defendants to reinstate the Claimant with immediate effect.
f. An Order of the Honourable Court directing the 3rd Defendant to pay to the Claimant all his entitlements, salaries and allowances from the last month his salaries was stopped till date of his retirement in 2018.
g. N5,000,000 (Five Million Naira), general damages against the Defendants.
The defendants filed their joint Statement of Defence against the above on 25th May 2017. This was deemed as properly filed and served on the 5th July 2017 Coram Anuwe J and again deemed as properly filed by me on 29th January 2018. Subsequently, on the 7th February 2018 the defendants filed a Notice of Preliminary Objection [NPO] dated 2nd February 2018. The NPO came up for hearing on the 11th July 2018. On this date, the learned counsel for the defendants/applicants: I.M. OGBU, STATE COUNSEL, IMO STATE drew the attention of the Court to the fact that they had an NPO before the Court dated 2nd February 2018 and filed 7th February 2018. The learned counsel stated further that the said NPO was supported by an affidavit, a Further Affidavit and a Written Address. The learned counsel equally indicated that they also filed a Reply on Points of Law. Thereafter, the learned counsel went ahead to adopt the written address.
Thereafter, the learned counsel for the defendants/applicants drew the attention of the Court to the fact that the Counter Affidavit of the claimant/respondent was filed out of time without the payment of the default fee. The learned counsel therefore moved the Court to discountenance the Counter Affidavit on this basis. The learned counsel to the claimant/respondent: S.A. OGBONNA replied by stating that his attention had just been drawn to the fact of non-payment of the default fee and asked that time be extended till that very 11th July 2018 and that the Counter Affidavit be deemed as properly filed and served on that date while he promised to pay the default fee later that day. This application was opposed by the learned counsel to the defendants/applicants on the ground that, his objection had been moved before the application was made and that, the applicant would not be able to pay that day. Citing UBA v. Eze (2014) LPELR-24057 (CA) 21, paras. A-E, the Court granted the application on the condition that the Counter Affidavit was taken back for assessment of the default fee by the Account Section of the Court and the accessed fee paid within seven days thereof with evidence kept in the file.
Thereafter, the learned counsel for the claimant/respondent drew the attention of the Court to the fact that their Counter Affidavit was filed on 28th May 2018, contrary to 28th June 2018 written on the address, together with a written address. The learned counsel thereafter relied on all the paragraphs of the Counter Affidavit and adopted the written address in support. Ruling on the application was thereafter adjourned to 27th September 2018. But before its delivery, the ruling was further adjourned off record to 28th September 2018 for delivery at Enugu pursuant to Order 62, Rule 12(1) of the NICN Rules 2018 due to my subsequent transfer. This ruling could not be delivered at the Enugu Division on the 28th September 2018 as a result of the strike action embarked on by the labour unions, which prevented the Court from sitting. It was, as a result finally adjourned to 5th October 2018. The next thing is the summary of the addresses of counsel to the parties.
But before then, let me observe that, I have combed through the file and could not find evidence of compliance with the order of Court that the default fee be paid within 7 days of 11th July 2018 and evidence thereof kept in the case file. I sat last on Friday 20th July 2018 before proceeding with the case file for the annual vacation on Saturday the 21st July 2018. From Wednesday 11th July 2018 to Friday 20th July 2018 when I sat last, is a period of 9 days. The claimant/respondent’s counsel, though promised to pay the default fee on the very 11th July 2018, but the Court graciously gave him a time grace of 7 days, did not pay on the 11th July 2018 as promised nor paid within the 7 days granted him, which 7 days expired on Friday 20th July 2018. The implication is that, the counter affidavit of the claimant/respondent together with the written address in support is not cognizable before this Court; and I so hold.
WRITTEN ADDRESS IN SUPPORT OF THE NPO
I.I. AMADI, ASSISTANT DIRECTOR CIVIL LITIGATION, IMO STATE franked the written address in support of the NPO. The learned counsel formulated a lone issue for the determination of the NPO, to wit: “Whether the Suit is Statute Barred and therefore, Incompetent Having Regard to Section 2(a) of the Public Officers Protection Law, Cap 106, Vol. VI, Laws of Eastern Nigeria, 1963, Applicable in Imo State.”
Arguing the lone issue, the learned DIRECTOR OF CIVIL LITIGATION, IMO STATE submitted that the suit was statute barred by virtue of section 2(a) of the Public Officers (Protection) Law [POPL] Cap. 106, Vol. VI, Laws of Eastern Nigeria, 1963, having being filed outside the statutory period provided in the law. The learned counsel also cited section 18(1) of the Interpretation Act, 2004, which defines public officer and Ibrahim v. JSC (1988) 14 NWLR (Pt. 584) to argue that the defendants are all public officers and as such, covered by the POPL. The learned counsel cited Accord Party v. Governor of Kwara State (2011) ALL FWLR (Pt. 555) 220 at 277; Cross River University of Technology v. Obeten (2012) ALL FWLR (Pt. 641) 1567 at 1583 and other cases, to argue that a cause of action accrued on the exact date giving rise to the incident in issue. The learned counsel citing Amede v. UBA (2009) ALL FWLR (Pt. 145) 712 at 721 and Gulf Oil Co. Ltd v. Oluba (2009) ALL FWLR (Pt. 469) 712 at 721 submitted that, the only process a court examined to determine if an action was statute barred are the initiating processes of the claimant. The learned counsel also cited Dawodu v. Ajose (2011) ALL FWLR (Pt. 580) 1334 1345 to anchor the argument that, issue of statute of limitation could be raised in limine.
Thereafter, the learned counsel argued that, looking at the date the cause of action arose and comparing it with the date the writ was filed, was the way to calculate the limitation period and cited Okenwa v. Military Governor of Imo State (1997) 6 NWLR (Pt. 507) 154 at 167. The learned counsel argued that, looking at paragraphs 7 and 13 of the Statement of Facts that the cause of action in the instant case arose on 23rd October 2015 and that, this suit was commenced 14th December 2015 [sic], which according to counsel, was more than a year interval. The learned counsel submitted that, the action of the claimant, having not been brought within 3 months prescribed by section 2(a) of the POPL, became statute barred. The learned counsel cited Egbe v. Adefarasin (No. 2) (1987) 1 NWLR (Pt. 47) 1 and Owners of the MV “Arabella” v. NAIC (2008) 11 NWLR (Pt. 1097) 182 at 219 to argue that, once a suit is statute barred, the proper order to make is one dismissing it. Arguing that, by being statue barred, the Court was devoid of jurisdiction; the learned counsel urged the Court to resolve the lone issue in favour of the defendants/respondents and dismiss this action.
I have earlier held that the counter affidavit and the written address of the claimant/respondent were not cognizable before the Court having failed to pay the default fee as ordered. The implication being that the NPO shall be decided on the written address filed by the defendants/applicants and the Statement of Facts filed, since statute of limitation is determined strictly with reference to the Statement of Fact and not the affidavits of the parties. It also follows that, I need not consider the reply on points of law filed by the defendants/applicants, since I did not take cognizance of the written address of the claimant/respondent, to which the reply on points of law is logically dependent, it becomes axiomatic that, I cannot take cognizance of the reply on points of law too. However, I must state that the mere fact of discountenancing the counter affidavit and written address of the claimant/respondent would not relieve me of my responsibility to ascertain the correct position of law on the NPO.
DECISION OF THE COURT
In giving my decision, I have carefully perused the Statement of Facts and the NPO together with the written address in support. The gravamen of the arguments canvassed in support of the NPO is that the cause of action herein arose on 23rd October 2015 and this action was commenced on 14th December 2015 [sic] and therefore statute barred. I have checked and observed that this action was actually commenced on 14th December 2016 and not 14th December ‘2015’ wrongly written by the counsel to the defendants/applicants in his written address. It is clear that the ‘2015’ written in the address was a misnomer, bearing in mind the subsequent argument that the time lapse was more than a year. This showed clearly that the counsel had 2016 in mind and not 2015. In any case, the Court is bound by the date contained in the originating processes in determining issue of statute bar.
From paragraph 13 of the Statement of Facts, it is clear that the cause of action arose on the 23rd October 2015 when the last letter retiring the claimant from service was written. But I found paragraphs 14-18 of the Statement of Facts pertinent too. The gravamen of these paragraphs is that since the 1st letter of retirement, wrongly served on the claimant in 2014 and corrected on 3rd October 2015, he had not been paid salaries and that, his purported premature retirement was actuated by victimization, as he was born in 1958 and only due for retirement in 2018 when he would have attained 60 years of age and that, the white paper affirming his due retirement thereafter was done in bad faith and that he was retired from service unlawfully in flagrant violation of the rules of the Civil Service due to machination of some people.
The concomitance of these paragraphs cited above is that the retirement was done unlawfully in flagrant disregard of the public service rules and that this was actuated by malice and bad faith. What is the effect of this line of pleading on the NPO? That is the main crux. There is no dispute about the date the cause of action arose and when this action was commenced. It is clear from a comparison of these two dates that the action ought ordinarily to be statute barred. However, the POPL, which is no doubt, impari materia with the Public Officers [Protection] Act, is not without some exceptions. That this is so, is well enunciated in the recent Supreme Court’s decision in AG Rivers State v. AG Bayelsa State & Anor (2012) LPELR-9336 (SC) 30-31 [no paragraph given] and I quote:
“The second exception to the application of the Act as a defence is that it does not cover a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty as claimed by the Plaintiff in this suit…
The pleadings of the Plaintiff at paragraphs 15, 38, 46 of the Amended Statement of Claim and paragraphs 6(i)-(iii); 7-9 of the Counter-Affidavit, it alleged that the 1st Defendant had perpetrated fraud and perpetrated deception on the Authorities to gain access to funds it is not entitled to under the Constitution. The 1st Defendant cannot avail itself of the defence under the Act if it has stepped outside the colour of its office, or its Statutory or Constitutional duties, if any. This Court must look into this issue and would not with a wave of hand deprive the Plaintiff its legal capacity, to ventilate his grievance…
In the foregoing premises I am of the firm view that the 1st Defendant’s preliminary objection founded on the Public Officers Protection Act cannot avail him. It is frivolous and it is dismissed in its entirety for lacking in merit.”
The Supreme Court earlier held in Hassan v. Aliyu & Ors. [2010] LPELR – 1357 [SC] pp. 36 – 37, paras. G – A that:
“It is however correct that where a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the provisions of the Public Officers Protection Act”.
Considering the gravamen of paragraphs 14-18 of the Statement of Facts, it is very clear that the issue of victimization, bad faith and patent illegality was raised against the defendants in their manner of retiring the claimant/applicant from service. It is clear that the claimant averred that he was retired in flagrant disobedience of the Civil Service Rules, which prescribed attainment of 60 years as his retirement date. If these were proved at trial, it would anchor patent illegality in the retirement of the claimant. It should not be forgotten that it is the Statement of Facts that is to be examined to determine whether or not the statute of limitation, inclusive of the POPL, apply in a given case and ipso facto, whether the case falls within any of the exceptions to the applicability of the POPL. Hence, in line with the above Supreme Court’s authorities cited, the question of the applicability of the POPL to this action cannot be determined in limine, as the learned counsel to the defendants/applicants has urged the Court to find. To resolve the issue of legality or otherwise of the retirement, the case must of necessity, proceed to trial where evidence could be adduced, tested and considered by the Court to arrive at a decision on the point. The provisions of section 2(a) of the POPL do not, therefore, catch this action because allegations of patent illegality and malice have been made against the defendants, which called for trial on the merit to resolve the truthfulness or otherwise of the allegations. The lone issue formulated for the determination of the NPO is therefore determined against the defendants/applicants. The NPO is therefore dismissed in its totality as lacking in merit. The case shall therefore proceed to trial on the merits.
This is the decision of the Court. Ruling is entered accordingly. No cost is awarded.
…………………………..
Hon. Justice O.O. Arowosegbe
JUDGE
National Industrial Court of Nigeria
