IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA —————————————————————————- Suit No: NICN/OW/34/2015 Petitioner: Mr Victor Kogah And Respondent: Niger Delta Development Commission Date Delivered: 2017-07-04 Judge(s): HONOURABLE JUSTICE O. Y. ANUWE Judgment Delivered Representation: Chief Uzoma Onyeike with Chief Noel A. Chukwuka-Dibia, E.O Okolie Esq, G.A. Amadi (Miss), Miriam Onwuchuruba (Miss), C.C.A. Agiriga Esq and Ngozi Njoku (Miss) for the Claimant G.C. Ekeke for the Defendant JUDGMENT/RULING This suit was commenced by the Claimant by way of Originating Summons which was issued on 5th May 2015. It is indicated that the claimant is suing in a representative capacity on behalf of persons who served in the Board of the defendant in the period 2000 to 2004 and 2005 to 2009. The Claimants raised the following question for the determination of the court in the Originating Summons: 1. Whether by a community reading, construction and interpretation of Sections 6, 14 and l5 (b) of the NDDC Act annexed herein as Exhibit “ND1―, the Applicants are not entitled to pensions; and gratuities drawn from the fund of the Commission from the dates of their disengagement from their membership of the Board of the NDDC. 2. Whether non-payment of severance allowances to the Applicants is not an indication and confirmation that Applicants are entitled to payment of pensions and gratuities. 3. Whether there has not been undue delay by the Respondent in the implementation of Section l5 (b) of the NDDC Act in favour of the Applicants. IN THE ALTERNATIVE 4. Whether the Applicants are not entitled to be paid severance allowances/benefits upon disengagement at the rate paid to the immediate past NDDC Board (2013). The reliefs sought by the Claimants are as follows: 1. A Declaration that the Applicant(s) having served on the Boards of the Niger Delta Development Commission as Representatives/Members of their various constituent state are entitled to pensions and gratuities instates are entitled to pensions and gratuities in accordance to the provisions of the NDDC Act for the time being in force. 2. A Declaration that the purported disengagement of the Applicant{s) who served as members of the various NDDC Boards at various times between 2000 – 2004 and 2005 2009 respectively without payment of their pensions and gratuities is wrong, and amounts to denial of the Applicants rights and enrollment. 3. A Declaration that Applicant{s) all of whom served on the various Boards of the NDDC between 2000 – 2004 and 2005 – 2009 are entitled to the full payment of their pensions and gratuities for offering meritorious service till their demise. 4. An Order of the Honourable Court directing the Respondent to pay all accrued gratuities and pensions to Applicant{s) from dates of their disengagement. 5. An Order of court directing the Defendants to pay Applicant{s) their gratuities and pensions based on their terminal emoluments. 6. In the Alternative: Assuming all the above prayers fail, – An Order directing the Respondent to pay the Applicant(s) (excluding the 2007 – 2011 batch) all their entitlements and severance allowances/benefits from the date of their disengagement till date of judgement. 7. Any other Order(s) as this Honourable Court may deem fit to make in the circumstances Upon entering appearance for the Defendant in the matter, counsel to the Defendant also filed a notice of preliminary objection on 9th June 2015 wherein it is prayed that the suit be dismissed or struck out by this court for the reason that the court lacks jurisdiction to entertain the suit. On 7th April 2017, both the substantive suit and the preliminary objection were taken together with the view that I will determine them together in the judgment reserved for today. Since the preliminary objection has to do with the jurisdiction of this court to entertain the substantive suit in the first place, I will have to determine it first before going into the substantive suit. It is the general attitude of the courts that once a court’s jurisdiction is challenged in a matter, it is mandatory the issue be resolved before proceeding to hear the matter on the merits. See ISAAC OBIUWEUBI vs. CENTRAL BANK OF NIGERIA (2011) 7 NWLR (Pt.1247) 465 at 494; INAKOJU vs. ADELEKE (2007) 4 NWLR (Pt. 1025) 423 at 588; A.P.G.A. vs. ANYANWU (2014) All FWLR (Pt. 735) 243 at 256-257. Since it is a well founded doctrine that where an action is not competent or properly instituted, the court is devoid of jurisdiction to entertain and determine same, it is thus most imperative that the issue of jurisdiction of this court be dealt with first and foremost before determining the action on the merits if the need will still be there. The two grounds of the defendant’s preliminary objection are: 1. The suit is statute barred by effect of Section 2 of the Public Officers (Protection) Act 2004 and section 24 of the Niger Delta Development Commission (Establishment e.t.c) Act, 2000. 2. The Court lacks the territorial jurisdiction to entertain the suit. The affidavit in support of the Notice of Preliminary Objection was deposed to by Ogechukwu Umeh Esq, the Principal Solicitor in the law firm representing the Defendant in this suit. It is an affidavit of 13 paragraphs. Counsel deposed that upon a careful examination of the originating processes, he observed that the action complained of by the Claimant against the Defendant occurred in the years 2000-2004 and 2005-2009 and the Defendant was purported to have been notified of the actions complained of on 27th May and 18th June, 2013 vide the letters exhibited by the Claimant to the affidavit in support of the Originating Summons as Exhibits ND1 and ND2 as stated in paragraphs 17 and 18 of the Claimant’s said affidavit. Since then, the Claimant did not take any action for redress against the Defendant until now. The Defendant was also not aware of any negligent action or omission done to the Claimant in the performance of its legal duties. It was also deposed that the Defendant conducts its business and controls its activities at Port Harcourt, Rivers State, which is its corporate headquarters and where it also resides. This suit ought to have been brought against the Defendant at the National Industrial Court, Port Harcourt instead of the National Industrial Court, Owerri. In the written address in support of their motion, the Defendants raised two issues for determination: a. Can a plaintiff bring an action in court, when the time frame within which he is to do such has expired? b. Can this Honourable court assume jurisdiction in Owerri Imo State when the place of abode and Business of the Defendant/Applicant is situated at Port Harcourt and there is a court of competent jurisdiction in Port Harcourt, Rivers State? On the first issue, Counsel submitted that this action is statute barred and cannot be competently maintained against the Defendant. Where an action is statute barred it goes to the Claimants’ right of action or cause of action and thereby robs the Claimants the right of action against the Defendant. Counsel cited the case of OGUNKO vs. SHELLE (2004) 6 NWLR (Pt. 868) 17 CA, OSUN STATE GOVERNMENT vs. DANLAMI (2007) All FWLR (Pt. 365) PAGE 438 SC and argued that the wrong complained of by the Claimants occurred and ran concurrently from the year 2000 – 2009 while this matter was commenced on 5th May, 2015, that is to say over 72 months after the cause of action arose and that the suit is therefore an infringement of SECTION 2 OF THE PUBLIC OFFICERS (PROTECTION) ACT CAP P 41 LAWS OF THE FEDERATION OF NIGERIA 2004 and SECTION 24 of the NIGER DELTA DEVELOPMENT COMMISSION (ESTABLISHMENT ETC.) ACT 2000, which provides that the act complained by the Claimant must be brought before the court within 3 months of the cause of action in order to imbue the court with the inherent jurisdiction to entertain the suit. He cited ASABORO vs. PAN OCEAN OIL (NIG.) LTD. (2006) 4 NWLR (Pt. 971) Pg. 595 CA where the Court of Appeal held that time for commencement of action begins to run for the purposes of the limitation laws from the date the wrong complained of occurred. See also JALLCO LTD. vs. OWONIBOYS TECH. SERV. LTD. (1995) 4 NWLR (Pt. 391) Pg. 534 at 538 SC. According to counsel, the wrong complained of by the Claimant happened sometime in the year 2000 – 2004 and 2005 – 2009 respectively. As such, the Claimant is precluded by the provisions of Section 2 of The Public Officers (Protection) Act Cap P 41 Laws of The Federation of Nigeria 2004 from further complaining to this court about the wrong since he slept and allowed his right to linger and thus lost the competence to maintain this action and that by SECTION 2 OF THE PUBLIC OFFICERS (PROTECTION) ACT CAP P 41 LAWS OF THE FEDERATION OF NIGERIA 2004 this action cannot be maintained against the Defendant after 3 months when the cause of action arose. Counsel cited NPA vs. LOTUS PLASTICS LTD. & ANOR (2006) ALL FWLR (PT. 297) Pg. 1023 at 1052-3 where the Supreme Court held that a statutory corporation in performance of its statutory duties is protected from unwarranted actions by setting out specific time limit in which to bring action against it. He went on that it is of importance that a court should be wary of every form of action brought before it since it is trite that no one should remain under threat of being sued indefinitely, and thus where a cause of action has elapsed, it is regarded as statue barred and should be struck. See ARAKA vs. EJEAGWU (2000) 12 SCNJ: PAGE 206 and P. N. UDOH TRADING COMPANY vs. SUNDAY ABARE & ANOR (2001) 5 SC (Pt. II) Pg. 64 at 73-74, where the Supreme Court considered the action of the Claimants and held that when an action is statue barred, the Claimant who might have had the cause of action losses the right to enforce the cause of action by judicial process because of the period of the limitation laid down by the limitation law for instituting such an action has elapsed. The question here is whether this action is maintainable against the Defendant in view of the applicable limitation laws. In the case of OGBA & ANOR vs. BENDE DIVISIONAL UNION, JOS BRANCH & ORS (2000) FWLR (Pt. 63) Pg. 25 at 46, the Court of Appeal held that legal proceedings cannot be validly instituted after expiration of prescribed period thus complaint of statue bar is one against incompetence of the suit as court will not have the jurisdiction to go on with the case. According to the Defendant, it was also a defect of a condition precedent as to competence to adjudicate upon an action, as such fatal and the proceedings thereupon will be a nullity therefore the issue of limitation has to be taken first and determined by the trial court as it goes to the root of a suit and its competence. Counsel cited WEMA BANK LTD. vs. INTERNATIONAL FISHING COMPANY LTD. & ANOR (1998) 6 NWLR (Pt. 555) Pg. 557 CA and also highlighted the position of the Supreme Court in UMUKORO vs. NIGERIAN PORTS AUTHORITY (1997) 4 NWLR (Pt. 509) Pg. 656 SC where the Supreme Court held that an action brought by the appellant for compensation against the respondent was time barred and as such the trial court and the Court Appeal were right to have dismissed the suit. According to Counsel, the Defendant is a public officer in contemplation of SECTION 2 OF THE PUBLIC OFFICERS (PROTECTION) ACT and S.24 of the NDDC Act while discharging its statutory duties. Thus in CBN vs. ADEDEJI (2004) 13 NWLR (Pt. 890) Pg. 226, the Court of Appeal held that the words any person in public office as stipulated in Section 2 (a) of the Public Officers (Protection) Act does not only refer to natural persons and persons sued in their personal name but extends to public bodies, artificial persons, institutions or persons sued by their official names or title. He also cited NIIA vs. ANYANFALU (2007) 2 NWLR (Pt. 1018) Pg. 246 where the Court of Appeal held that an artificial person set up by the State to perform functions of a public nature, for examples, Nigeria Institute of International Affairs or National Judicial Council is a person within the contemplation of the Public Officers (Protection) Act. They referred the court to the case of NWAOGWUGWU vs. FEDERAL REPUBLIC OF NIGERIA (2007) 6 NWLR (Pt. 1030) Pg. 237 C.A. where the Court of Appeal held that artificial persons and public bodies can benefit under Section 2 of the Public Officers (Protection) Act. He went on that limitation laws are applicable to actions on issues of employment and matters incidental to employment such as gratuities, pensions, emoluments, remunerations, benefits or severance benefits, appointments, dismissal, termination of employment and suspension from duties. In IBRAHIM vs. JUDICIAL SERVICE COMMITTEE, KADUNA STATE (1998) 14 NWLR (Pt. 384) 1 SC, the Supreme Court held that when a matter even though it relates to contract of employment or matters incidental thereto are not brought against a Public Officer within the statutory 3 Months, the Public Officers Protection Act removes the right of action, right of enforcement, and right to Judicial relief in a plaintiff and leaves him with a bare and empty cause of action which he cannot enforce if the alleged cause of action is statute barred citing UMUOKORO vs. NIGERIA PORT AUTHORITY (1997) 4 NWLR (Pt. 502) 656. S.C. They submitted that a public officer is an agent of the Government who is its employer and a disclosed principal urging the court by virtue of SECTION 122 (2) OF THE EVIDENCE ACT to take judicial notice of the fact that the Defendant is an agency of the Federal Government of Nigeria contending that in ORONOSAYE vs. OGEDENGBE (2009) All FWLR (Pt. 476), Pg. 1926, the Court of Appeal held that “Where a statute clearly provides for particular act to be performed, failure to perform the act on the part of the party will not be interpreted as a diligent conduct but will be interpreted as not complying with statutory provisions. In such a situation the consequence of non-compliance with statutory provisions follows/ notwithstanding that the statute did not specifically provide for sanction. The court can by the invocation of its interpretative jurisdiction/ come to the conclusion that failure to comply with statutory provision is against the party in default”. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Thus an action instituted after the expiration of the prescribed period is said to be statute barred citing OGUNKO vs. SHELLE (2004) 6 NWLR (Pt. 868) 17 CA. According to counsel, the Claimant is precluded from bringing this action against the Defendant, the rationale being that the Defendant is a Public officer and that the combined effect of Section 24 OF THE NDDC ACT and Section 2 of the PUBLIC OFFICERS’ (PROTECTION) ACT, should be applicable in relation to any action brought against the Defendant/Applicant as in this suit. See NWAOGWUGWU vs. FEDERAL REPUBLIC OF NIGERIA (Supra), A.G. RIVERS STATE vs. A.G. BAYELSA STATE & ANOR (2013) All FWLR (Pt. 699) 1090. Counsel submitted that the Claimant in this suit was appointed by the Presidency to serve at the Defendant/Applicant’s board sometime in 2000 – 2004 and 2005 – 2009 and was compulsorily discharged from the Defendant/Applicant’s board, yet he waited 72months after to institute this action against the Defendant/Applicant which has in turn affected the jurisdiction of this court to sit and hear this matter. See ONADEKO vs. U.B.N PLC (2005) All FWLR (Pt 250) 57 CA; OWNERS OF MV “ARABELLA” vs. NIGERIAN AGRICULTURAL INSURANCE CO-OPERTION (2008) 4-5 SC (Pt. 11) 189. On Issue Two, it is the submission of counsel that it is the law that jurisdiction is determined by the nature of the Claimant’s claims, venue and reliefs sought, and the court is duty bound to look at the surrounding circumstances such as the abode of the Defendant, his place of business and the ability to attend court and present evidence, as veritable issues determining the territorial jurisdiction of the court in a suit as seen in IBORI & ANOR vs. FEDERAL REPUBLIC OF NIGERIA & ORS (2009) 3 NWLR (Pt. 428) Pg. 283, 323 – 324 SC where the Supreme held that territorial jurisdiction of a court is where a court assumes its jurisdiction and adjudicate over a matter which is within the territorial environment where the suit arose as to afford the Defendant the convenience to attend court and present his case without difficulties for the interest of justice. Counsel referred the court to ORDER 2 RULE 1 of the NATIONAL INDUSTRIAL COURT RULE, 2007 and submitted that the place of abode, business, management and control of the Defendant/Applicant is in Port Harcourt, Rivers State and not in Owerri, Imo State, which this suit was erroneously filed and that a great injustice and hardship would be wrought on the Defendant if this matter is heard and/or determined in Owerri instead of Port Harcourt were the Defendant resides. In KRAUS THOMPSON ORG. LTD. vs. UNIVERSITY OF CALABAR (2004) ALL FWLR Pt. 209 at RATIO 12 SC, the Supreme Court Stated that the place of business should be taken into consideration in determining the place of adjudication of a suit. Similarly in NYAME vs. FGN (2009) SC 136 and IYANDA vs. LANIBA 11 (2003) 8 NWLR Pt. 801 Pg. 267 CA, the Court of Appeal held that in a matter of territorial jurisdiction, cases arising or involving persons residing within a defined territory over which a matter is governed by a Court which has subdivisions, one of its subdivisions within the defined territory only has jurisdiction. He cited INT’L NIGERBUILD CONST. CO. LTD vs. GIWA (2003) 13 NWLR Pt. 836 Pg.69 CA, where the Court of Appeal further stated that when it comes to the issue of territorial jurisdiction the question is as to whether a suit ought to have been brought in a division of the Court in a State and was brought in another and as such the court has no jurisdiction and cannot be conferred to it by agreement or consent of the parties in the suit. Therefore, since there is a branch of this Court in Port Harcourt were the Defendant/Applicant resides, the court is called upon to strike out this matter and allow this matter to be filed in the appropriate branch of the Court and that for a court to assume jurisdiction over a matter, the case must be initiated by due process of law and upon fulfilment of any conditions precedent to the exercise of jurisdiction. See FRANK vs. ABDU (2003) FWLR Pt. 198 at Pg. 1330 Ratio 2(e) at Pg. 1334. In opposing the Preliminary Objection, an affidavit of 23 paragraphs was filed by the Claimant. He averred that his 2009 batch of the members of the Defendant’s Board were not paid any emoluments but in 2013, the 2009 to 2013 batch of were paid emoluments. It was then the Claimant realised the existence of his right and he brought this suit in May 2015 after consultation with his legal practitioner. It is true that he wrote the letters he marked Exhibits ND1 and ND2 to the Defendant on 27th May and 18th June, 2013 which letters show he acted timeously upon realizing the act of the Defendant he is complaining about. The Claimant further deposed that the Defendant has a branch office in Owerri, Imo State where it also carries on business. The National Industrial Court Owerri can hear this suit as the National Industrial Court in Port Harcourt is not functional. The Claimant added that interpretation, construction and determination of relevant sections of the NDDC Act constitute the main claims in this suit. In their written address in support of the counter Affidavit, the Applicant/Respondent formulated two issues for determination viz. a. Can a Plaintiff bring an action in court, when the time-frame within which he is to do such has expired? b. Can this Hon. Court assume jurisdiction in Owerri lmo State when the place of abode and the business of the Defendant/Applicant is situated at Port Harcourt and there is a court of competent jurisdiction in Port Harcourt, Rivers State? To further assist the Court to resolve the issues, the Applicant/Respondent formulated two issues for determination: c. Whether the action of the Claimant is statute barred. d. Whether National Industrial Court, Owerri is seized of jurisdiction and can hear this matter. On Issue 1, the Applicant/Respondent contended that the action of the Applicant/Respondent is basically for the interpretation, construction and determination of S.6, 14 and 15B of the NDDC Act which have since the creation of the NDDC left many guessing as to the true import, meaning, operation and application of those sections. Counsel, citing the case of Plateau State vs. Attorney General Federation (2008) 3 NWLR (Pt. 967) 346, argued that is trite law that time does not run out for interpretation of statutes and there is no limitation to the challenge of the validity of any legislation as in any law. He reiterated that even the Constitution is a living document and as long as it is in force, a question for its interpretation may always be raised. Counsel for the Claimant, referring to paragraphs 17, 18, and 19 of the Counter-Affidavit, argued that the reliefs sought by the Claimant is principally for the interpretation of the above mentioned provisions by this Court, and that such matter can’t be statute barred, thus, the purported argument of S. 2 of Public Officers Protection Act (POPA) and 24 NDDC Act limiting this action to 3 months is erroneous and a misconception of the law as the principal reliefs sought by the Applicant/Respondent well reside within the interpretative jurisdiction of the court. He contended that S. 24 NDDC Act provides clearly for limitation of action against the board or employee of the Commission for acts done or omissions, or neglects in pursuance of the Act. According to Counsel, S.24 of the NDDC Act does not limit actions against the Commission and that the cause of action of any suit can be determined from the pleading. He went on that nobody, no party can bring an action when the time for bringing the action is past, depending however on the nature of the Suit or where there is exemptions such as in this case when the cause of action is for the interpretation of statute. He argued that where Interpretation of the Law or Statute is the subject matter, a party can bring action. He therefore urged the Court to resolve the issue in favour of the Applicant/Respondent, that the matter is not statute barred in so far as the main relief or claim is for the interpretation of the Statute. On issue 2, counsel referred to Order 2 Rules 1 & 3 of the NICN Rules, 2007 and contended that this Court has jurisdiction in this matter based on the foregoing provisions. He referred the court to paragraphs of the Counter-Affidavit and submitted that the Defendant also resides at Owerri where it has a branch office. Counsel submitted that in the instant case, the Respondent/Applicant carries on business in Owerri, as branch of its several offices and that the forum is seised of jurisdiction as it is convenient in the circumstances that the Division of the NICN in Port Harcourt is not sitting and the Respondent/Applicant is resident in Owerri as a result of its branch. According to counsel, the desire of the Respondent/Applicant requiring the Court to strike out the matter is not in good faith and that even though the principal place of business of the Defendant is in Port-Harcourt, Rivers State, it would not prevent the NICN, Owerri Judicial Division from hearing the matter as it is the most convenient option for both parties. He cited S.6 (6)(B) of the Constitution of 1999 (as amended) and urged the Court to discountenance the argument of the Defendant and assume jurisdiction based on Order 2 Rules 1 and 3 which empowers the Court to disregard the failure of a Claimant in bringing his action in the appropriate judicial division, as the National Industrial Court’s Jurisdiction is one throughout Nigeria. COURT’S DECISION Both counsels to the respective parties formulated two issues in their addresses which they want this court to determine in the Notice of Preliminary Objection. The issues so formulated by counsels are the same but couched in different words. The ones by the Claimant’s counsel are more apt. I shall adopt those issues only that I will have to rearrange their sequence. I think it is tidier to first determine if this Division of the NICN can entertain this suit. Therefore, the issues are these: 1. Whether National Industrial Court, Owerri Division, is seized of jurisdiction to can hear this suit. 2. Whether the action of the Claimant is statute barred. ISSUE 1: The Defendant contended in the 2nd ground of the Preliminary Objection that this court lacks territorial jurisdiction to entertain this suit. It was averred in the affidavit in support of the NPO that the Defendant is based in Port Harcourt, Rivers State, as it has its headquarters there. It is the Division of the National Industrial Court in Port Harcourt which ought to hear this suit and not this Division at Owerri. In response, the Claimants stated in their counter affidavit that the Division of the National Industrial Court in Owerri can hear this suit because the Defendant has a branch office in Owerri, Imo State where it also carries on business. The issue of the appropriate forum or Division of the NICN to entertain suits filed in the court has been taken care of by the Rules of this Court. Order 1 Rule 10 of the 2017 Rules of this court defines the term “Judicial Division― to mean “a location at which the court carries out its business in any part of the federation. All judicial divisions of the court shall be one for the purpose of instituting, commencing, and proceeding on any matter within the jurisdiction of the court.― This definition makes it clear that all Divisions of the NICN are regarded as one court. As such, suits may be commenced in any of them, notwithstanding location of parties. When the Defendant contended that this suit ought to be instituted at the Portharcourt Division because that is where the Defendant has its office, the Defendant is merely alleging that the suit was filed in a wrong division of the NICN. That contention is not substantial as to warrant this suit being dismissed or struck out as sought by the Defendant. Order 2 Rule 5 of the 2017 Rules provides that suits commenced in wrong division may be tried in that division unless the President of the court directs otherwise. The Defendant has not shown me any direction from the President of this court for this suit to be tried in another Division. Therefore, in view of Order 2 Rule 5 of the Rules of this court, I hold that this Division of NICN is competent to entertain this suit. The 2nd ground of the Notice of Preliminary Objection has no merit. ISSUE 2: The first ground of the Defendant’s Notice of Preliminary Objection is that this suit is statute barred. The Defendant made the assertion on the basis of Sections 2 of the Public Officers’ Protection Act and Section 24 of the NDDC Act. It was averred in the affidavit in support of the Notice of Preliminary Objection that the action of the Defendants complained of by the Claimants occurred in the years 2000-2004 and 2005-2009 but the Claimants did not take any action for redress against the Defendant until now. The Claimants explained in their counter affidavit that they were the 2009 batch of the Board members of the Defendant who were not paid any emoluments. But the 2009-2013 batch after them were paid emoluments in 2013. When these latter Board members were paid in 2013, the Claimants realised they have a claim against the Defendant, hence they brought this suit in May 2015. From the questions for determination in the Originating Summons and the reliefs sought by the Claimants, which have been reproduced at the beginning of this ruling, it is shown that the Claimants sued the Defendant seeking interpretation of some Sections of the NDDC Act under which the Claimants alleged they are entitled to be paid certain entitlements. The Defendant is established in Section 1 of the Act. Therefore, both the subject matter of the action and the Defendant against whom the action is brought are derivatives of the Act. Section 24 of the Act provides: (1) Subject to the provisions of this Act, the provisions of the Public Officers Protection Act shall apply in relation to any suit instituted against any officer or employee of the Commission. (2) Notwithstanding anything contained in any other law or enactment, no suit shall lie against any member of the Board, the Managing Director or any other officer or employee of the Commission for any act done in pursuance or execution of this Act or any other law or enactment, or of any public duty or authority or in respect of any alleged neglect or default in the execution of this Act or such law or enactment, duty or authority, shall lie or be instituted in any court unless- (a) it is commenced within three months next after the act, neglect or default complained of; or (b) in the case of a continuation of damage or injury, within six months next after the ceasing thereof The above provision prescribes time limit within which action can be brought against Defendant or its officers. The Section also makes the provisions of the Public Officers’ Protection Act POPA applicable to suits instituted against the defendant or its officers or employees. Section 2 (a) of POPA provides as follows: “2. 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.― It is settled law that the term public officer, as used in POPA, extends to public bodies, artificial persons, institutions or persons sued by their official names or title. See IBRAHIM vs. JUDICIAL SERVICE COMMISSION, KADUNA STATE (1998) 12 SC 20; CBN vs. ADEDEJI (2004) 13 NWLR (Pt. 890) 226. I have also stated it earlier that the complaint of the Claimants in this suit is the default of the Defendant to pay the Claimants certain entitlements which they ought to be paid under the NDDC Act. Therefore, the combined effect of the above provisions is that any action against the Defendant in respect of such alleged neglect or default in the execution of the provisions of the NDDC Act or the Defendant’s public duty or authority, must be commenced within 3 months from the date the cause of action arose. Where the action is not instituted within the prescribed 3 months of the accrual of the cause of action, it will be statute barred and can no longer be entertained by the courts. See KASANDUBU vs. ULTIMATE PETROLEUM LTD (2008) All FWLR (Pt. 417) 155 at 182; EGBE vs. ALHAJI (1990) 3 S.C (Pt.1) 63; TAJUDEEN vs. C.I.P.S.B (2010) 4 NWLR (Pt. 1184) 325; UNIVERSITY OF ILORIN vs. ADENIRAN (2007) 6 NWLR (Pt. 1031) 498. What is to be done at this point is to determine whether the Claimants’ filed this suit against the Defendant within 3 months from the date their cause of action arose. From the affidavit of the Claimant in support of the originating summons, the Claimant deposed therein that the tenure of all the former members of the Defendant’s Board who are Claimants in this suit elapsed at various times with the last batch which elapsed in 2009. That is to say none of the Claimants’ tenure went beyond 2009. The Claimants’ case is that they were not paid gratuities and pension when their service in the Defendant’s Board ended. From the state of averments in the Claimants’ affidavit, the Claimants’ cause of action arose in 2009 when all their respective tenures had ended but they were not paid their severance benefits or pension and gratuity. The Claimants waited until May 2015 to institute this action. That is a period of about 6 years from the time the cause of action arose. The claimant averred, in the counter affidavit to the Notice of Preliminary Objection, that they became aware of their right in 2013 when the 2009 to 2013 batch were paid emoluments. Assuming the Claimants’ cause of action arose in 2013 when the 2009-2013 batch were paid, they still didn’t file this action within 3 months from that period. It is obvious that the suit was not filed against the Defendant within the statutory 3 months stipulated by the POPA and NDDC Act. The Claimants’ counsel did argue however that the suit is for interpretation of an Act, as such, it is not statute barred. Let me first state that it is the cause of action that determines if the matter is statute barred or not and not the interpretation of the Act itself. In my view also, there was an action of the Defendant which informed the need for the interpretation of provision of the NDDC Act. It is that action of the Defendant that is the cause of action. Importantly, the NDDC Act and the POPA clearly stated that any suit in respect of any act done in pursuance or execution of the Act or suit in respect of any alleged neglect or default in the execution of the Act is statute bared if not commenced with 3 months. This action of the Claimants falls within the provision and it is thus affected by the limitation period. I therefore find no merit in that line of argument of the Claimants’ counsel. I am not unmindful of the claims of the Claimants which are in the nature of claim for gratuity and pension. Although it has been held, particularly in POPOOLA vs. A.G. KWARA STATE (2011) All FWLR (Pt.604) 175, that by virtue of Sections 173 and 210 of the 1999 Constitution (as amended), claims for pension and gratuity and not affected by statutes of limitation, that law will not apply to the circumstances of this case. The Claimants are not certain they are entitled to pension and gratuity. That is why they want this court to first interpret the provision of the NDDC Act to determine if they are entitled to such payments. Since the Claimants rights to pension and gratuity have not yet been determined to accrue to them, their claim cannot be said to be a claim for pension and gratuity. In addition, the period of delay before the Claimants brought this action is awfully too long. The Claimants have slept over their right. Laches had already worked against their claim for purported pension and gratuity. It is clear from the foregoing that this suit was filed more than 3 months from the date the cause of action arose. The Claimant did not commence this suit against the Defendants within the statutorily prescribed 3 months. Where a statute prescribes for the bringing of an action within a prescribed period of time, proceedings shall not be brought after the time prescribed by the statute. This is because an action brought outside the prescribed period is contrary to the provision of the law and does not give rise to a cause of action. See ELEBANJO vs. DAWODU (2006) All FWLR (Pt. 328) 604; INEC vs. OKORONKWO (2009) All FWLR (Pt. 488) 227 at 247. By the effect of Section 2 (a) of POPA and Section 24 of NDDC Act, the Claimants’ suit is clearly statute barred having been filed outside the statutory period. The action is no longer maintainable and this court lacks jurisdiction to continue to entertain it. In the circumstance, the appropriate order to make is to dismiss the Claimants’ suits. Accordingly, the suit is dismissed. Having come to this conclusion, consideration of the substantive arguments in respect of the Originating Summons becomes unnecessary, the suit having been dismissed. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge
