IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS
DATE: SEPTEMBER 20, 2017
SUIT NO: NICN/LA/572/2016
BETWEEN
Mr. Samuel Olanrewaju Fajolu – Claimant
AND
The Nigerian Security Printing and Minting Plc. – Defendant
REPRESENTATION
Timilehin Oguntuase for the Claimant.
N.J. Inyang for the Defendant.
RULING
- Introduction & Claims
The Claimant approached this Court on 7/9/16 via his General Form of Complaint and a statement of facts and sought the following reliefs –
- An order for payment of the sum of =N=152,028.51 (One Hundred and Fifty Two Thousand, Twenty Eight Naira, Fifty One Kobo) being the amount payable to him in lieu of notice of termination of employment.
- An order for payment of the sum of =N=1,581,675.06 (One Million, Five Hundred and Eight One Thousand, Six Hundred and Seventy Five Naira Six Kobo) being the Claimant’s total accumulated entitlements/gratuity with the Defendant.
- The sum of =N=2,000,000.00 (Two Million Naira) as general damages.
Claimant filed along with his Form 1 all requisite processes as prescribed by the Rules of this Court.
- Preliminary Objection
The Defendant filed a Memorandum of Conditional Appearance on 24/11/16. Learned Senior Counsel to the Defendant also filed a Notice of Preliminary Objection brought pursuant to Order 11 Rule 1 (1) and Order 15 of the National Industrial Court Rules 2007; Section 2 of the Public Officers Protection Act CAP P41, Laws of the Federation of Nigeria, 2004 and under the inherent jurisdiction of this Honourable Court and sought the following reliefs –
- An order dismissing or striking out this suit because this honourable court lacks the jurisdiction and or competence to entertain this suit and
- And for such further or other orders as this honourable court may deem fit to make in the circumstances.
The grounds for this application are as follows
- The Defendant is a Public Officer protected under Section 2 of the Public Officers Protection Act, CAP P41, Laws of the Federation 2004.
- By the Claimant’s account, his alleged cause of action in this suit arose on 21st November, 2012 when his appointment was allegedly terminated without notice. The Claimant therefore ought to have commenced this suit on or before 21st February, 2013.
- However, the Claimant commenced this suit on the 7th day of September, 2016 over 3 years after he ought to have commenced this suit.
- By virtue of Section 2 of the Public Officers Protection Act, CAP P41, Laws of the Federation 2004, the Claimant’s claims in this suit are statute barred.
- In the circumstance, this honourable court lacks the jurisdiction and or competence to entertain this suit.
In support of this application, learned Counsel filed a 13 paragraph affidavit and a written address. On 3/7/17, Counsel to the Defendant adopted his written address as his argument in support of the notice of preliminary objection. Counsel submitted that the lone issue for determination is whether from the facts and circumstances of this case, this suit is statute barred by virtue of Sections 2 of the Public Officers Protection Act, Cap. P41, Laws of the Federation of Nigeria, 2004. Counsel argued that the Defendant is a public officer citing Adekoye v. N.S.P.M.C (2009)5 NWLR (Pt. 1134) 322 & Grace Ngozi Enemali v. The Nigerian Security Printing & Minting Plc Unreported Suit No: NICN/LA/390/2012 delivered on 24/1/14; that by Section 2 of the Public Officers Protection Act, any action against the Defendant must be commenced within 3 months from the date of accrual of cause of action; that the cause of action in this case is a letter of termination of the Claimant’s appearance of 13/4/10 while this suit was commenced on 10/4/14 about 3 years after he ought to have commenced this suit. Counsel cited Forestry Research Institute of Nigeria v. Gold (2007)11 NWLR (Pt. 1044)1 and prayed the Court to dismiss this suit with substantial cost.
- Submissions in Opposition
In opposition to the notice of preliminary objection, learned Counsel to the Claimant/Respondent filed a 9 paragraph counter affidavit dated 20/4/17 on 20/4/17, 3 exhibits and a written address dated 11/4/17. Counsel argued that the claimant has satisfied the conditions stated in Madukolu v. Nkemdilim (1962) All NLR 587 in that the subject matter is within the jurisdiction of this Court, the Court is properly constituted as regards members and their requisite qualification and no member is disqualified for one reason or the other and that the case comes before the Court initiated by the due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Counsel further argued that the Claimant has a reasonable cause of action going by the statement of facts filed citing Chevron (Nig.) Limited v. L.D. (Nig.) Limited (2007) NWLR (Pt. 1059) 168 at 179. Learned Counsel urged the Court to dismiss the Notice of Preliminary Objection for being frivolous, vexatious, scandalous and an abuse of Court process.
- Decision
This Judgment was adjourned for delivery on 21/9/17. I however directed that hearing notices be served on the parties and learned Counsel to attend this Court today for same. I have read with understanding all the processes filed for preliminary objection. I also heard the oral argument of learned Counsel on either side. Having done all this, I narrow the issue for the just determination of this case down to one thus –
Whether the Public Officers Protection Act bars the suit of the Claimants/Respondents.
A challenge based of statute of limitation constitutes a challenge to the jurisdiction of the Court to hear and determine a cause or matter. Issue of jurisdiction once raised, it is imperative that it be resolved one way or the other. Jurisdictional issue is a fundamental and critical issue. It is a challenge that can be raised at any point in the cause of the proceedings. It may even be raised on appeal. In any event, jurisdiction is not an issue of fact. It is one of law. That being the case, it can even be raised by a trial Judge suo motu the only proviso being that a trial Judge must allow parties to proffer their addresses on same before delivering a Ruling. The reason being that a challenge of jurisdiction goes to the very root and foundation of the case before the Court and where jurisdiction is absent every effort dissipated in hearing a case amounts to efforts in futility. This is irrespective of the genuine intention, diligence and erudition of the trial Judge.
A case is said to be barred by the statute if it is not brought and instituted within the time limit statutorily allowed to institute such an action. In a scenario as this, though the right of a party suing is there, it can however not be enforced through the judicial process. To determine whether or not a case is or is not barred by a statute, two critical points must be established. Firstly, the provision of the statute must be established as to the class of suits and the duration or time limit permitted. Secondly, the time when the suit concerned is instituted must be established so as to determine whether or not it comes outside the time limit.
Now section 2(a) of the Public Officers Protection Act, Cap. P 41, Laws of the Federation of Nigeria, 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 provisions shall have effect –
- 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’.
The purport of the above provision is that all actions against public officers must be instituted within three months failure to do which the right to ventilate same through the judicial process is extinguished, see Christiana Yare v. National Salaries, Wages and Income Commission (2013) LPELR 20520 (SC). Where an action is instituted outside the time allowed by the statute, the Court which hitherto had jurisdiction to hear and determine same is automatically divested of that adjudicatory power. In much the same vein, the right available to a Claimant or Plaintiff in such a situation is one that cannot be enforced through the judicial process.
Now, the next critical point to consider is whether or not this suit is caught by the said statute being a statute of limitation. In determining whether or not a case is not caught by a statute of limitation, the starting point is the examination of the date the cause of action arose vis-a-vis the date the suit was instituted. The appropriate focus is certainly the statement of facts in the instant case. Now, when did the cause of action in this case arise? A cause of action arises the day a party is entitled under the law to approach the Court for redress against an alleged wrong committed by the other party. By the statement of facts filed by the Claimants and dated 7/9/16, paragraph 7 of same states thus –
”7. The Claimant avers that on 21st November, 2012, his employment with the Defendant was terminated without any notice given to him. The letter dated 21st November, 2012 is hereby pleaded”.
Again in paragraph 8 of his witness written statement on oath of 7/9/16, the Claimant averred –
”8. That on the 21st November, 2012, my employment with the Defendant was terminated without any notice given to me. The letter dated 21st November, 2012 is hereby pleaded”.
It is apparent that the right of the Claimant/Respondent to approach the Court arose on the day he was issued letters of termination dated 21/11/12. Within the provision of the relevant statute, the Claimant/Respondent had 3 months from that date to seek judicial intervention in their matter. Unfortunately, this suit was filed on 7/9/16. In other words, the Claimant in this case did not approach the Court for redress until almost 4 years after the accrual of his cause of action. The suit of the Claimant, is unfortunately outside the time limit as allowed by the Public Officers Protection Act, 2004. It is trite law that a major consequence of not instituting an action within the time as prescribed by a statute expressly is that the right of action is removed and lost by the Claimant and while the wrong may be there, judicial process cannot be commenced for its enforcement. I find the suit of the Claimants caught by the Public Officers Protection Act, 2004. I uphold the preliminary objection raised and dismiss the action of the Claimants/Respondent accordingly.
Before I draw a curtain on this Ruling, it is important for me to mention that the learned Counsel to the Claimant/Respondent elected not to address the fundamental issue of application of statute of limitation to this suit. Rather undue attention was devoted to a lame fact that the Court has jurisdiction and that the Claimant has a reasonable cause of action. The point must be taken that when an argument is raised respecting the application of Public Officers Protection Act to a case, it is not so much of the presence of cause of action or reasonable cause of action. The point being made by Counsel to Applicant in such a case is that although the cause of action was there, it has been taken outside judicial intervention having been caught by a statute of limitation. Once a case is caught by statute of limitation, even a Court of law which hitherto had jurisdiction is automatically divested of that jurisdiction.
Finally and for the avoidance of doubt, the preliminary objection brought by the Defendant/Applicant succeeds. Claimants’ suit is caught up and barred by the Public Officers Protection Act, 2004. Claimants’ case is thus dismissed. I make no order as to cost.
Ruling is entered accordingly.
I make no order as to cost.
____________________
Hon. Justice J. D. Peters
Presiding Judge
