MRS BETHEL ILAMI KIBAM ALLEN -VS- THE STATE SECURITY SERVICE

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP:

HON. JUSTICE AUWAL IBRAHIM, PhD

DATE: 9^thJanuary, 2018

SUIT NO.: NICN/PHC/88/2017

BETWEEN:

MRS BETHEL ILAMI KIBAM ALLEN

CLAIMANT/RESPONDENT

AND

THE STATE SECURITY SERVICE (A.K.A. DEPARTMENT OF STATE SERVICES)
ALHAJI MUSA DAURA
MR ADEOLA OLUWATOSIN AJAYI
MRS FEYISARA I. OGUNBANWO

DEFENDANTS/APPLICANTS

REPRESENTATION:

M. Sada Esq. for the Claimant/Respondent.

C.S. Eze Esq. appeared for the 1^st Defendant.

2^nd and 3^rd Defendants not represented.

RULING

The Claimant in this case filed a Complaint dated 30^th August, 2017 on the same date and in paragraph 35 of the Statement of Facts, she claims the following reliefs:

That I pray the Honourable Court for the following reliefs:

A declaration that the purported dismissal of the claimant from the services of the 1^st Defendant vide the 1^st defendant’s letter of 28^th April, 2017 is null and void and of no effect whatsoever as it contravenes the Public Service Rules of the Federal Republic of Nigeria.
A declaration that the Claimant’s employment with the 1^st defendant is still valid and subsisting.

iii. A declaration that the claimant is entitled to the payment of all her outstanding salaries, allowances and other benefits by the 1^st defendant from the 1^st of March 2017 up to the date of judgment.

A declaration that the purported suspension and dismissal of the claimant by the 1^st defendant is unconstitutional and an act of discrimination.
An order compelling the defendants to reinstate the claimant to the same position as her service mates in the service of the 1^st defendant with all the rights, privileges, salaries, fringe benefits and entitlement accruable therewith as her service mates from 1^st day of March, 2017 until when judgment is delivered up to when the judgment is complied with.
An order compelling the 1^st defendant to promote and upgrade the claimant as her colleagues in the service of the 1^st defendant who equally passed the 1^st defendant’s upgrading promotion interview of January 28, 2017.

The Complaint is accompanied with a Statement of Facts, list of witnesses, Statement on oath of the Claimant as witness, list of documents to be relied upon at trial. Upon being served with the originating processes of the Claimant, the 1^st Defendant filed a memorandum of appearance on 4^th October, 2017. It then filed along a Notice of Preliminary Objection dated 4/10/2017 in which it sought for the following orders:

AN ORDER striking out this suit for lack of jurisdiction.
AND such other Order(s) as this Honourable Court may deem fit to make in the circumstance.

The grounds for the application are:

That this suit has been caught up by statute of limitation, hence it is statute barred.
That the 2^nd – 4^th Defendants were sued in their personal names for acts allegedly done in their official capacity.

The Notice of Objection is supported by an affidavit of 20 paragraphs deposed to by one OlumideOlalere, a Superior Officer of the 1^st Defendant. There is a written address accompanying the said application.

Upon being served with the said Notice of preliminary objection, the Claimant filed a counter affidavit of 16 paragraphs deposed to by the Claimant himself. Attached thereto is a written address of the learned Claimant’s counsel. Parties adopted their respective written addresses on the 12^th of December, 2017.

In his written address, learned counsel for the 1^st defendant formulated and argued the following two issues for the court’s determination:

Whether by virtue of Section 2 of Public Officers Protection Act (POPA) 2004, this suit is statute barred?
Whether 2^nd-4^th Defendants are proper parties before this Court, haven been sued in their personal names for acts allegedly done in their official capacities?

Arguing issue 1, learned counsel for the 1^st Defendant contended that this suit has been caught up by statute of limitation. It is statute barred and unmaintainable against the defendants. That by virtue of section 2 of POPA, all actions challenging the action, decision or omission of a public officer must be instituted within three (3) months from the day the action, decision or omission complained of occurred. He referred to Energy Marine and Industrial Ltd vs Minister of the Federal Capital Territory & Anor (2010) 6-7 MJSC (Pt. III) 149 at 181 & 182 and Yarai vs Modibbo Adama University of Technology, Yola (2016) NGCA 36 (17 May 2016).

Learned counsel continued that it is clear from the defendant’s affidavit that at the conclusion of the Orderly Room Trial (ORT), the Adjudicating Officer (AO) informed Claimant of her dismissal on 24/02/2017. That the decision of the AO (like that of a High Court), remains final, conclusive and operative decision of the Service until a higher appellate authority in the Service sets it aside. In this case, the JSDC did not set aside the AO’s decision. Also, the JSDC’s decision was not set aside by the National Headquarters, the Claimant having refused/failed to appeal. Counsel submitted that time started to count for the Claimant from 24/02/2017 or at best, from 28/02/2017, when she was informed of both the AO’s and JSDC’s verdicts respectively. Furthermore, that not having appealed against the decisions of 24/02/2017 and 28/02/2017, the said verdicts which were variously communicated to the Claimant remain valid and in force. That the said letter of dismissal dated 28/04/2017, merely re-echoed and reminded Claimant of the verdicts which she had long been notified (on 24/02/2017 and 28/02/2017). As such, it does not lie with the Claimant to argue that she only got to know about her dismissal on 1/06/2017. If she does, she would be lying to the Honourable Court.

Learned counsel continued that the question here is when was the act complained of by the Claimant completed? He then submitted that it was completed way back on 24/02/2017 and 28/02/2017, when the ORT was conclude and verdict on claimant’s dismissal passed and affirmed. That in Eleajun vs ElegbataAlimi (1991) 3 NWLR (Pt. 179) 258 CA it was held as follows:

The action must be instituted against the public officer before the expiration of three (3) months from the date of the commission of the act complained of, if the action is brought after three (3) months period, it will be unmaintainable.

That in this case, the act of dismissing the Claimant was done and communicated to her both on 24/02/2017 and 28/02/2017. The above dates were the effective ones in which the action, which the claimant is complaining about took place and time started to run from that day. He referred to Timipire Sylva vs INEC (2015) 16 NWLR (Pt. 1486) p. 583. He urged the court to hold that the Claimant’s suit has been ensnared by the limitation statute and should taste the fate that naturally awaits it.

On issue 2, whether the 2^nd – 4^th Defendants are proper parties having been sued in their personal names for acts allegedly done in the official capacities, counsel stated that what is deducible from the claimant’s documents is fact that the 2^nd-4^th defendants were sued in their personal names. The crux of the issue before this court hinges on acts allegedly done by them in their official capacities. He contended therefore that they are not proper parties before this Court. He submitted that it is trite law that a public officer in Nigeria cannot be sued or held liable personally for any act which he allegedly did in his official capacity. That it is clear that the events leading to dismissal of the claimant as well as the actual dismissal were steps and decisions taken in the exercise of their powers and in their capacity as public officers in the management cadre. They have not done so in their personal capacity. They allegedly carried out the act while occupying certain positions which could pass on to their individuals during the pendency of the suit. That a clear example is that of the 4^th defendant who is now retired and no longer within the reach and control of the 1^st defendant.

Learned counsel contended further that the Claimant ought to have sued the positions which ostensibly have the attribute or perpetual succession. Merely describing 2^nd-4^th Defendants as occupants of those positions is not sufficient. In sum, it is his view that 2^nd-4^th Defendants are not proper parties before the Court. He referred to Zain (Nig) Ltd vs Ilorin (2013) All FWLR (Pt. 681) @ 1520, where the Court held that “No court of law can adjudicate without proper parties before it to ventilate their grievances”. He added that the defect is not a mere misnomer that may be corrected by amending the originating process. It is a fundamental error that goes to the root of the Court’s jurisdiction to handle this matter. It is trite law that anything done without requisite jurisdiction will amount to a nullity. He referred to SPDC vs Daniel Pessu (2015) LPELR-23325 and Plateau State Government vs A-G Federation (2016) All FWLR (Pt. 305) @ 5900. He then urged the court to hold that the 2^nd-4^th Defendants are not proper parties before the Court and to strike their names from this suit. He also contended that where the court strikes out their names, this action will not be maintainable against the 1^st Defendant. This is because the crux of the act complained of was largely done by the 2^nd-4^th Defendants in their official capacity. If their liability is proved, the 1^st defendant cannot be liable.

Concluding, learned counsel urged the court to uphold his view and strike out the suit.

In his own written address in opposition to the preliminary objection, the learned Claimant’s counsel formulated and argued two issues for the court’s determination as follows:

Whether in view of the fact that the parties have joined issues by way of pleadings, this issue is not premature?
In the event that this Honourable Court decides that it is not premature to raise this issue, whether the suit is statute barred?

Arguing the first issue, he stated that in determining when an action is statute barred, the court must first examine the statement of claim. In order to determine the date of a cause of action arises the court is enjoined to examine the Writ of Summons and the Statement of Claim of the Plaintiff so as to know the date the alleged wrong was committed and compare the date with the date the Writ of Summons was filed. He referred to the case of Agbonika vs University of Abuja (2014) All FWLR (Pt. 715) 335 ratio 4.

That for the purposes of the limitation of action time begins to run from the moment the cause of action has arisen, that is when the facts that are material to be proved to entitle the plaintiff to success has happened. It is the time of the occurrence of the factual situation on which the Claimant relies upon to support the remedy he seeks from the court. He referred to Agbonika’s case, supra, ratio 5.That in Folarin vs Idowu (2014) All FWLR 743 at 761,the Court of Appeal, per Oseji JCA, held:

In order to ascertain the time when the cause of action accrued for the purpose of the limitation law the courts only look at the Writ of Summons and Statement of Claim which ordinarily ought to contain averments of facts as to when the wrong committed by the defendant took place and compare it with the date when the Writ was filed.

That the procedure the court is to follow when the issue of limitation of action is raised after the parties have joined pleadings is well spelt out by the Supreme Court in the case of Woherem vs Emeruwa (2004) All FWLR (Pt. 221) 1570 to 1582 where Iguh JSC stated thus:

What needs to be emphasized is that the determining factor is the averment in the plaintiff’s Writ of Summons and Statement f Claim. This is the case however, where at the end of settlement and exchange of pleadings or after the plaintiff has filed his statement of claim, the defendant is obliged at that stage to contest in limine by way of a preliminary objection that the plaintiff’s action is statute barred and ought to be struck out. The position is different where issues is (sic) joined by the parties in their pleadings as to the date the cause of action in a suit arose. In that case, such an issue must be proved by the parties in the course of the hearing of the suit by credible evidence to be determined by the court. SAVANNAH BANK (NIG) LTD vs PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD (1987) 1 NWLR (Pt. 49) 212.

From the position of the law above, it is counsel’s submission that the processes the court can look at in determining whether the suit is statute barred is the claimant’s Statement of Facts, not the facts contained in the supporting affidavit or even the Statement of Defence. He referred to paragraphs 19 and 23 of the Complaint wherein the Claimant clearly stated that she was called to come to the office on the 1^st of June 2017, and was shocked when she was given a letter of termination dated 28^th April, effective 28^th day of April, 2017. The Claimant at paragraph 17 of the Statement of Facts averred that at the end of the Orderly Room Trial she was not told of any dismissal. On the other hand, the Defendants have denied that fact. Consequently, since issues have been joined on this issue in the pleadings, applying the rule in Worehem’s case above, counsel urged the court to keep this matter at abeyance till the end of trial when evidence would have been taken. He therefore urged the court to uphold issue 1 in favour of the Claimant/Respondent

That on the other hand, if the Court is minded to resolve this issue now, he prays the court to resolve issue in favour of the Claimant/Respondent. The Defendants have not denied the Claimant’s averment that the purported letter of dismissal was served on the Claimant on the 1^st of June 2017. The Defendants have not produced any letter of dismissal served on the Claimant on the 28^th day of February, 2017 or the 28^th of April, 2017. Limitation time begins to run when the circumstances and facts entitling the claimant to sue have arisen. The claimant cannot commence an action when she has not been served with a letter of termination. Consequently, counsel submitted that all the facts and circumstances entitling the Claimant to sue became due on the 1^st day of June 2017, when she was served with a letter of termination, and that is when the cause of action arose. To decide otherwise will give the defendants room to perpetuate injustice and fraud by keeping letters of termination secret until the three months would have expired before serving same on the employees.

Finally counsel submitted that the presence of the 2^nd-4^th Defendants has no bearing on the issue at hand. The counsel to the 1^st defendant/applicant does not represent the 2^nd-4^th Defendants.

He urged the court to dismiss the preliminary objection.

The learned counsel for the 1^st Defendant/Applicant did not file any reply on points of law.

I have carefully considered the processes filed, as well as the arguments and submissions of the learned counsel to the parties on the preliminary objection raised by the learned counsel for the 1^st Defendant. The issues for determination are two. These are:-

Whether or not the suit is statute barred?
Whether the 2^nd-4^th Defendants are proper parties before the court?

On the first issue, the first determining point is to establish when the cause of action arose and then when the Claimant filed the action in court. If the claimant is found to have filed the action outside the time frame set by the limitation law, then it must be held to be statute barred. This position is trite. The issue in this case, however, regarding date of the cause of action is that while the 1^st Defendant maintains that the cause of action arose on 24^th February, 2017 and 28^thApril, 2017, the Claimant says it is the 1^st of June, 2017. The argument is based on fact that the said letter of the dismissal of the Claimant was served on her on the 1^st June, 2017. The 1^st Defendant on the other hand maintains that the Claimant was informed of the termination of her appointment following the successful Orderly Room Trial and the confirmation of same on 24^th and 28^th of February, and April, 2017, respectively. This disputation over the exact date of the accrual of the cause of action made the Claimant to submit that the issue be deferred until after evidence has been taken in the matter. The learned Claimant’s counsel referred to the case of Worehem vs Emeruwa (2004), supra, the dictum of Iguh JSC as follows:

What needs to be emphasized is that the determining factor is the averment in the plaintiff’s Writ of Summons and Statement f Claim. This is the case however, where at the end of settlement and exchange of pleadings or after the plaintiff has filed his statement of claim, the defendant is obliged at that stage to contest in limine by way of a preliminary objection that the plaintiff’s action is statute barred and ought to be struck out. The position is different where issue is joined by the parties in their pleadings as to the date the cause of action in a suit arose. In that case, such an issue must be proved by the parties in the course of the hearing of the suit by credible evidence to be determined by the court. SAVANNAH BANK (NIG) LTD vs PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD (1987) 1 NWLR (Pt. 49) 212.

Learned 1^st Defendant’s counsel did not challenge or respond in any way, even by way of reply on points of law, against this point. In this respect I do not see any reason not to uphold this view. I find further strength here in the decision of Enemuo& Anor vs Ezeonyeka& Ors (2016) LPELR-40171 (CA), Per Bolaji-Yusuff, JCA, p. 14 paras A-E, where His Lordship held that:

In determining that date, the law is settled that it is the averment or the depositions in the process or processes filed by the plaintiff or claimant that should be perused. Where an action is commenced by a Writ of Summons and Statement of Claim, it is the averments in those two processes that determine the date of accrual of cause of action. Where the action is commenced by an Originating Motion as in this case, it is the deposition in the affidavit in support of application that determines the date the cause of action accrues. Where the Defendant joins issue or challenges the date stated by the Claimant or the applicant, the date of accrual of cause of action must be determined by hearing both parties and must (be) based on credible evidence adduced before the court. The determination cannot in law be made on the averments or the deposition of the Defendant or Respondent. (Underlining supplied for emphasis)

The position in the instant case is that the court cannot proceed to make a finding on the date without first hearing evidence of the parties. Accordingly therefore, on the authorities of Worehem vs Emeruwa, supra, and Enemuo vs Ezeonyeka, supra, the court hereby defers the determination of the issue of statute bar to the end of hearing evidence of the parties on the date on which the cause of action accrued. I so hold.

On the second issue, the case of the 1^st defendant is that the 2^nd-4^th Defendants are not proper parties because they acted in their official capacities but are here being sued in their respective personal capacities. The learned Claimant’s counselsimply submitted that the 1^st defendant lacked the capacity to raise the objection on behalf of the 2^nd-4^th Defendants. I have carefully considered the arguments and submissions of the parties. I am not in doubt about the fact that the 2^nd-4^th Defendants have each being sued in their respective personal capacities in this matter for acts that they allegedly committed or omitted to do in their respective official capacities. The law is quite clear. There cannot be personal liability for official actions. In the manner they are sued, they are to be in court for the determination of the issues in dispute before the court. This cannot be correct in law. See the case of Zain Nigeria Limited vs Ilorin (2012) LPELR-9249 (CA), MTN vs Emegano (2016) LPELR-41090 (CA) both of which were cited and relied upon by the learned counsel for the 1^st Defendant. Proper and necessary parties must be before the Honourable Court for it to assume jurisdiction for the determination of the dispute in the case. They must be persons, natural or juristic, in whom rights and obligations can be vested and are capable of suing or being sued to answer for their actions. In this case the 2^nd – 4^th Defendants acted in their personal capacities and cannot be proper parties in this case as they do not have any personal interest in the matter. See Nweke vs Nweke (2014) LPELR-23563 (CA). In the circumstance, I uphold the objection to the inclusion of the 2^nd– 4^th Defendants to this suit. They have been wrongly joined in the matter in their respective personal capacities. I so hold.

The 2^nd– 4^th Defendants are accordingly hereby struck out. The suit proceeds to hearing against the sole defendant now. I make no order as to costs.

Ruling is entered accordingly.

Hon. Justice Auwal Ibrahim, PhD

Presiding Judge