MRS. IBRAHIM EDE MERCY -VS- The Kogi State Government

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LOKOJA JUDICIAL DIVISION

HOLDEN AT LOKOJA

BEFORE HIS LORDSHIP: HON. JUSTICE Z.M. BASHIR.

Dated this 9^th day of November, 2018 SUIT N0: NICN/LKJ/14/2018

BETWEEN:

MRS. IBRAHIM EDE MERCY….……………………………………………………………… CLAIMANT

AND

KOGI STATE GOVERNMENT……………………………………………………………..DEFENDANTS

Representation:

E.A. Ekpa with J.S. Gbaje for the Claimant.

D.O. Oyelude for the Defendant.

Ruling/Judgment.

This suit was commenced by an originating summons filed on the 24^th of May 2018, wherein the Claimant urged the court to determine three questions to wit:

1. Whether the claimant who has neither attained the mandatory retirement age of 60 years, nor 35 years of pensionable service whichever is earlier can be compulsorily retired contrary to her terms and condition of employment?

2. Whether by cumulative reading and proper construction of claimants’ letter of employment dated 22^nd January, 1987 and confirmation letter of appointment dated 10^th May, 1989 alongside the retirementletter from the defendant dated 9^th January, 2018, the defendant has power to have the claimant retired compulsorily?

3. Whether the Defendant has the power to retire the Claimant from Kogi State Civil Service without giving her requisite notice or payment of salary in lieu of notice, when the Claimant is not guilty of any misconduct?

Upon the determination of the above questions, the Claimant seeks the following reliefs to wit:

1. A DECLARATION that the abrupt termination of the employment of the Claimant from the service of the Defendant when she had not attained the mandatory retirement age or length of service was premature, wrongful, unlawful, malicious, irregular and flagrant violation of the terms and conditions of Claimant’s employment.

2. AN ORDER reinstating the Claimant as a Director in the Kogi State Civil Service.

3. AN ORDER directing the defendant to pay all the Claimant’s benefits and emoluments.

4. AN ORDER directing the defendant to allow the Claimant to enjoy her promotion and continue to be so until she retires either voluntarily or by determination of 60 years of age or 35 years of service.

5. AN ORDER directing the defendant to pay to the Claimant the sum of N700,783.56k as annual leave bonus due and unpaid for the period of 2015 to 2018, the sum of N937,754 as salaries due and unpaid for the period of January to May, 2018 and salary and statutory benefits due to the Claimant as director from June, 2018 to the date of the judgment of this Honourable Court.

6. A PERPETUAL INJUNCTION restraining the Defendant by themselves, their servants, agents, privies from taking further steps to retire the Claimant prematurely or doing anything that will affect the employment and pension right guaranteed by the 1999 Constitution of Federal Republic of Nigeria.

7. The cost of this action.

The Originating summons of the Claimant was supported with a 26 paragraphed affidavit deposed to by the Claimant, Mrs. Ibrahim Ede Mercy, 10 exhibits and a written address.

In reaction to the originating summons, the Defendant on the 21^st of September 2018 filed a 16 paragraphed counter affidavit deposed to by one Oloruntoba I. Elizabeth, one exhibit and a written address.

The Claimant then filed a reply on point of law on the 4^th of October, 2018 in reaction to the counter affidavit of the Defendant.

Meanwhile, upon the filing of a counter affidavit, the Defendant also filed on the 21^st of September, 2018 a notice of preliminary objection pursuant to Order 17 rule (9) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and section 2 (a) of the Public Officers Protection Law, Cap 158 Laws of Northern Nigeria and under the inherent jurisdiction of this honourable Court.

The ground upon which the preliminary objection was brought is that the Claimant’s claims are caught up by the provisions of Section 2(a) of the Public Officers (Protection) Law, Laws of Northern Nigeria, 1963 and the action is therefore statute barred.

The Defendant by the notice of preliminary objection is seeking the following relief to wit:

An order of this honourable Court dismissing the Claimant’s Originating Summons as presently constituted.

And for such order or further orders as this Court may deem fit to make in the circumstances of this application.

The preliminary objection was supported by a 4 paragraphed affidavit deposed to by one Sunday Shata and a written address.

Arising from the written address in support of the preliminary objection, learned Counsel to the Defendant, D.O. Oyelude, formulated a sole issue for determination to wit:

Whether the instant action instituted against the Defendants on the 24^th day of May 2018, well after a period of 3 (Three) Months after the Defendant’s retirement of the Claimant from the Kogi State Public Service is not statute barred by virtue of Section 2 of the Public Officers (Protection) law, laws of Northern Nigeria, 1963.

In arguing the sole issue, learned counsel cited section 2 (a) of Public Officers Protection Law, Laws of Northern Nigeria 1963 and argued that it is settled law that where the words in a statute are plain, clear and unambiguous, effect should be given to them in their ordinary and natural meaning except where to do so would result in absurdity. He cited the cases of Awolowo v. Shagari (1979) NSCC 87 at 112 lines 25-40, A-G, Abia State v. A-G Federation (2002) B NWLR (pt.7B3) 264 at :365, paras. A-B.

Counsel also argued that the said provision operates as a statute of limitation and the Courts, through a plethora of judicial authorities, have identified the philosophy, rationale and essence behind the application of statute of limitations. He cited the English cases of Cartledge & Ors v. Jopling & Sons Ltd. (1963) 1 A.E.R 341, Biss V. Lambeth Health Authority (1979) 1 WRN 382 and Nigerian cases of Egbe v. Adefarasin (1987) 1 NSCC 1 at 16-17, U.B.N. Ltd v. Oki (1999) 8 NWLR (Pt. 614) 244 at 253-254 and Nwadiaro v. Shell Dev. Co. Ltd (1990) 5 NWLR (Pt. 150) 322 at 337-338.

Counsel also added that a cause of action is said to be statute barred if in respect of its proceedings, cannot be brought because the period laid down by the limitation Law or Act has elapsed. He cited the case of Sanda v. Kakawa local Government (1991) 2NWLR (Pt. 174) 379 at 389.

Counsel also referred to the conditions for determining whether a suit is statute barred as postulated in the case of Thomas v. Olufosoye (1986) NSCC Volume 17 (Pt. 1) 323 at 331. In applying the condition to the instant case, counsel contended that the Claimant’s complaint/alleged cause of action in this action as shown on the face of the Originating Summons and the attached affidavit in Support stems from her retirement by the Kogi State government through the Kogi State Civil Service Commission. The action was carried out by the Defendant on the 9^th day of January, 2018 via Exhibit I attached to the Claimant’s Affidavit in Support of the Originating Summons.

Counsel further contended that the retirement of the Claimant was in pursuance of law, public duty or authority and by the provisions of Section 2(a) of the Public Officers (Protection) Law, the Claimant ought to have commenced the action within 3 months of the 9^th January, 2018 i.e. not later than 9^th day of April, 2018. Counsel posited that the instant action filed on the 24^th of May, 2018, a period of over 4 Months after the cause of action arose is statute barred by simple mathematical computation.

Counsel contended that the statute of limitation removes the right of action and what the court should do when it finds that a suit is statute barred is to make an order of dismissal. He cited the cases of Edosomwan v. A.C.B Ltd (1) 7 NWLR (pt. 408) 472 at 478. Eboigbe v. NNPC (supra) at pgs 649-661, Lamina V. Ikeja Local Government, (1993) 8 NWLR (Pt. 314) 758 at 771.

Counsel therefore concluded by urging the court to dismiss the Claimant’s originating summons filed on the 24^th day of May, 2018.

In reaction to the notice of preliminary objection, Claimant filed a written address in opposition to the objection on the 4^th of October, 2018. Arising from the said written address, Claimant placed reliance on the facts deposed in the affidavit in support of the originating summons. Also, learned counsel to the Claimant,E.A. Ekpa formulated a sole issue for determination to wit:

Whether the case of the claimant is caught up by the provisions of S. 2 (a) of the Public Officers Protection Act, CAP P. 41 LFN, 2004 and any condition precedent for the jurisdiction of this Hon. Court to be affected thereby.

In arguing the lone issue, counsel contended that the preliminary objection of the Defendant is unfounded and demonstrates lack of appreciation of the issues before the court in the originating summons. Counsel posited that it is the cause of action as identified in the statement of claim that determines the issue of jurisdiction of the court concerned. He cited the case of CAPITAL BANCORP LIMITED Vs. SHELTER SAVINGS AND LOANS LIMITED AND ANOTHER (2007) 1 S.C. (Pt.II) 1. and urged the court to look at the affidavit in support of the Originating Summons particularly paragraphs 9, 10, 11, 13, 14, 15 and 16 to arrive at a decision on jurisdiction.

Counsel contended that the claim before this Court seeks redress against the continued denial of the claimant’s benefits, salaries and entitlements as a result of a fundamentally flawed, illegal and null process which was not only unlawfully staged but clearly targeted at the claimant for no justifiable reason. He added that the claimant has therefore continually and up till the time of filing this claim and indeed even while the case is pending before this Honourable Court, been denied her entitlements.

He added that it is therefore unfounded to raise the issue of S. 2 (a) of the Public Officers Protection Act when there is gross and continued violation of the fundamental right to fair hearing and denial of livelihood of the claimant through the same process.

Counsel also contended that one of the strong reasons why the preliminary objection must fail is that from the circumstances of this case, there is not only an allegation of gross abuse of office against the purported act of the Defendant against the claimant, the same act is shown to have no backing in law or statute and cannot enjoy any protection of law. He cited the case of OFFOBOCHE VS. OGOJA L. G. (2001)16 NWLR (PT.739458 at 485, PARAS. A-D and N. I. C. V. AMINU (2012) 8 NWLR (PT. 1302) 330 at 355, paras. C-D, ATTORNEY-GENERAL OF RIVERS STATE Vs. ATTORNEY- GENERAL OF BAYELSA STATE & ANOR. (SUPRA) at PAGE 149,PARAS F – G and NWANKWERE Vs. ADEWUNMI (1967) NWLR 45 at 49; ANOZIE V. ATTORNEY-GENERAL OF THE FEDERATION (2008) 10 NWLR (Pt. 1095) 278m at 290 – 29.

Upon this, counsel contended that this is a case where the public officer ought to be denied protection of section 2 (a) of Public Officers Protection Act as the Claimant was abruptly retired without being heard by a legally constituted authority and same not being in line with Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and ORDER III Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009.

Counsel contended that the Claimant was not afforded the opportunity to defend herself and the court cannot grant the objectors protection in the circumstance. Counsel cited the cases of GARBA Vs UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT.18)550. and MILITARY GOV., LAGOS STATE Vs. ADEYIGA (2012) 5 NWLR (PT. 1293) 291 at 319-320, PARAS. F-B.

Counsel further argued that the wrong done to the Claimant is a continuing one, as her entitlements have not been paid to date. Counsel cited the case of POOPOLA Vs A.G. KWARA STATE (2011) All FWLR (pt. 604) 175 at 190-191 PARAS. G-C to posit that there can be no limitation or cessation of the Claimant’s cause of action until the claimant has been paid her entitlements or the question hanging on the unconstitutionality of her compulsory retirement is firmly decided. Counsel pointed that there are ample averments in paragraphs 6,7,8,9,10,11,12,13,14,15,16,17,18,19, ,22,23 and 24 of the affidavit in support of the originating summons that failure by the defendant to allow the claimant the benefit of her service in the defendant’s employment and failure to pay the entitlements and allowances is a continuous neglect and or default which has not ceased till date. Therefore each day the defendant refused to pay the claimant her entitlements, a new cause of action accrues and neither section 2 (a) of the Public Officer’s Protection Act or any other law shall operate as a bar to prevent the claimant from filing an action to recover same. Counsel cited the case of F.G.N. VS. ZEBRA ENERGY LTD. (2002) 3 NWLR (PT. 254) 471 AT 499 PARAS C-D.

Learned Counsel also maintained that the statute of limitation does not apply to cases of contract and cited further the case of N.P.A. VS. CONSTRUZIONI GENERALI F.S.C. & ANOTHER (1979) NSCC PAGE 622 AT 630 .

Counsel concluded urging the court to dismiss the preliminary objection.

By way of reply on point of law filed on the 11^th of October, 2018, learned Counsel to the Defendant, D.O. Oyelude, contended that the submission of the Counsel to the Claimant that the cause of action in this suit is the continued denial of the Claimant’s benefits and therefore a continuing one is misconceived. Counsel cited the case of Independent National Electoral Commission v. Ogbadibo Local Government & Ors. (2015) LPELR-24839 (SC) and maintained that the cause of action in this suit is the compulsory retirement of the Claimant as can be gathered from the affidavit in support of the originating summons and Exhibit I.

Counsel also contended that the alleged denial of benefits, salaries and entitlements is the resultant effect or consequence of the act of termination of employment.

With respect to the contention that the retirement of the Claimant was outside the colors of office and authority of the public officers, counsel retorted that the retirement was carried out in line with Public Service Rules and same was not in bad faith and was carried out by the Civil Service Commission within the confines of its public duty.

With respect to the contention that the limitation law does not apply to contracts, counsel contended that the case cited by counsel to the Claimant is one on contract for oil mining and the court did not pronounce on the applicability of such exception to contract of service or employment. Counsel cited the case of Ekwunife v. Ngere (2000) 2 NWLR (Pt. 646) 650 at 887-868 to maintain that a case is only an authority for an issue it decides. Counsel also posited that the appropriate case in the instance is that of Alhaji Aliyu Ibrahim V. Judicial Service Commission, Kaduna State & Anor. (1998) LPELR-1408(SC).

Counsel concluded by urging the court to uphold the preliminary objection and dismiss the originating summons as same is statute barred.

Upon a careful consideration of the foregoing, it is imperative that this court deals foremost with the preliminary objection before the substantive suit as same touches heavily on the jurisdiction of this honourable court.

It was held in NELSON ONONYE & Ors v. RIGHT REVD. MONSIGNOR C. CHUKWUMA(2005) LPELR-7526(CA)Per AUGIE, J.C.A to the effect that:

“Jurisdiction is the power or authority which a court possesses to adjudicate over a particular matter or dispute, see Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 242.” (P. 23, paras. A-B).

To emphasize the importance and unique position it occupies, the court in MR. BLESSING AGBEBAKU v. FELIX OLUSHOLA UNUIGBE & ORS. (2009) LPELR-3654(CA) held that:

“Jurisdiction is a threshold issue, the life blood of adjudication in a Court of law which must be decided as soon as it is raised, and it may be raised at any stage of the proceedings and even on appeal. Where a Court lacks jurisdiction, no matter how well the trial was conducted, the trial would be a nullity. See CHIEF ELIGBE V. OMOKHAFE (2004) 12 SCNJ. Page 106 ELABANJO V. DAWODU (2006) 6 SCNJ. 204” per NWOSU-IHEME, J.C.A.(P.11, paras. B-D).

The Supreme Court in NURTW & ANOR v. RTEAN & ORS.(2012) LPELR-7840(SC) also reiterated that:

“It has been pronounced by this Court several times that jurisdiction is very fundamental. It is the life wire of a case which should be determined at the earliest opportunity. If a Court has no jurisdiction to determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. This is so since a defect in competence is not only intrinsic, but extrinsic to the entire process of adjudication. See: Madukolu v. Nkemdilim (1962) SCNLR 341; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508.” Per FABIYI, J.S.C.

Arising from the above authorities, the issue of jurisdiction is being tackled first despite the originating summons. If the issue is misconceived, I will proceed to deal with the other issues for determination. If on the other hand there is merit in the said issue, then it will serve no useful purpose resolving the other issues in the originating summons.

In view of the foregoing, I have examined the ground upon which the Preliminary Objection is predicated and painstakingly considered the submissions of both Counsel in their respective written addresses and reply on point of law. Consequently, I find that the sole issue to be determined in the disposition of the preliminary objection is to wit:

“whether or not this suit is statute barred thereby denying this court of jurisdiction”.

In resolving the sole issue, I must of necessity commence by reckoning that the preliminary objection is predicated on the effect of a statute of limitation on the claim of the Claimant and the statute of limitation is the provision of section 2 (a) of the Public Officers (Protection) Law, Laws of Northern Nigeria, 1963. The said provision is in pari material with that of section 2 (a) of Public Officers Protection Act and counsel on both sides have interchangeably argued upon both provisions.

That notwithstanding, learned Counsel to the Defendant had argued that this suit is statute barred having been instituted outside the limitation period provided by the above statute, therefore it is imperative to reproduce the said provision to wit:

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 provisions shall have effect –

the action, prosecution, or proceeding shall not 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 courts have in several cases appraised the essence and import of the above provision and in the case of ALHAJI (DR.) ADO IBRAHIM v. ALHAJI MAIGIDA U. LAWAL & ORS(2015) LPELR-24736(SC), the Supreme Court restated the meaning, purpose and effect of the above provision when it held that:

“The above provision is quite clear and simple. Its general effect is that where a law provides for the institution of an action in a court of law within a prescribed period in respect of a cause of action accruing to the plaintiff, proceedings shall not be brought after the expiration of the period circumscribed by law. More often than not, the laws of this country and elsewhere prescribe certain periods of limitation for instituting certain actions in court. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as statutes of limitation. It follows that where a statute of limitation prescribes the period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. See Egbe v. Adefarasin & Anor. (1987) 1 NWLR (Pt. 47) 1 at 21, Oba J. A. Aremo II v. Adekanye & 2 Ors. (2004) 13 NWLR (Pt. 891) 572, Egbaigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649, Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637, Sanda v. Kukawa Local Government (1991) 2 NWLR (Pt. 174) 379. One may wonder why a person’s right of access to court should be extinguished by law. The rationale for the existence of statute of limitation is that long dormant claims have more of cruelty than justice in them and that a defendant may have lost the evidence to disprove a stale claim and that a person with a good cause of action should pursue it with reasonable diligence. See John Ekeogu v. Aliri (1990) 1 NWLR (Pt. 126) 345. …Per OKORO, J.S.C.

The statute of limitation in this instance as captured above provides for a limitation period of three months within which an action against a public officer must be commenced. While parties have not argued in this regard, it is imperative to state that the Defendant in this suit bears personnel who are public officers within the meaning and scope of section 18 of the Interpretation Act, Cap 123 LFN, 2004 which defines public officer as:

A member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria 1999, or the Public service of a state.

See the case of INEC & ORS V. ORJI & ORS (2009) LPELR-4320(CA); REGISTERED TRUSTEE PPFN V. SHOGHOLA (2004) 11 NWLR (Pt.883) 1 at 20 para C-E.

What is in contention between the parties is the applicability of the statute of limitation as the Claimant has largely contended that this suit is not statute barred. In this regard, the court has long laid down the yardstick to determine the applicability of a statute of limitation. In the case of DONBRAYE & ANOR v. PREYOR & ORS(2014) LPELR-22286(CA) the court held that:

“The yardsticks to determine whether an action is statute-barred are:-

(a) The date when the cause of action accrued.

(b) The date of commencement of the suit as indicated in the writ of summons.

Time begins to run for the purpose of the limitation law from the date the cause of action accrues.

British Airways Plc. v. Akinyosoye (1995) 1 NWLR (Pt. 374) pg. 722; Shell Petroleum Development Co. (Nig) Ltd. V. Farah (1995) 3 NWLR (Pt. 382) pg. 148; Jallco Ltd. V. Owoniboys Tech. Serv. Ltd. (1995) 4 NWLR (pt. 391) pg. 534; Asaboro v. Pan Ocean Oil (Nig) Ltd. (2006) 4 NWLR (pt. 971) pg. 595; Ogunko v. Shelle (2004) 6 NWLR (Pt. 8868) pg. 17; Osun State Government v. Dalami Nigeria Ltd. (2007) All FWLR (Pt. 365) pg. 438; Akinkunmi v. Sadiq (2001) 2 NWLR (Pt. 696) pt. 101; FRN v. Associates Motors Co. Ltd. (1998) 10 NWLR (Pt. 570) pg. 441; Obiefuna v. Okoye (1961) 1 SCNLR pg. 144.” Per YAKUBU, J.C.A. (Pp. 47-48, paras. F-F).”

In applying the above yardsticks, I find it necessary to first determine what the cause of action is in the instant suit. I must state that this suit being one commenced by originating summons have three questions for determination and the originating summons is supported by a 26 paragraphed affidavit deposed to by the claimant. These processes are the documents wherefrom this court can deduce the cause of action. Also, it is trite that the process a Court looks at or examines to determine whether a cause of action has accrued for the purpose of determining when a suit is statute barred is the Statement of Claim. In this case, the affidavit in support of originating summons. The court in PASTINOR INVESTMENT COMPANY LIMITED & ANOR v. BANK OF THE NORTH & ANOR (2014) LPELR-23622(CA) held that:

“…to determine whether or not there is a cause of action, that is, recognizable right(s) of the Plaintiff infringed or violated by the act or conduct of defendant, recourse has to be had to the writ of summons and statement of claim of the Plaintiff only, not to the motion of the defendant or what the defendant imagines as the cause of action”.

See also the cases of KASANDUBU V. ULTIMATE PETROLEUM LTD (2008) 7 NWLR (PT. 1086) 274 AT P. 297 – 298, PARAS. F – A; KOFA V. KAITA (2011) LPELR -8952 (CA) and POPOOLA ELABANJO V. DAWODU (2006) 15 NWLR (PT.1001) 76.

Having said that, the next question is, what exactly is a cause of action? In the most succinct form, the court in Adesokan v. Adegorolu (1997) 3 NWLR (Pt.493) noted that “itsuffice it to say that the sum total of the wrong complained of which impelled a plaintiff to go to court to seek redress is the cause of action.” Per ONU, J.S.C. (Pp. 37-38, paras. G-A)

In view of the contention between counsel to the claimant and the Defendant as regards what the cause of action before the court is, I therefore take a close look at the originating summons and the affidavit in support to find what wrong impelled the Claimant to approach the court to seek redress.

Firstly, I find it imperative to restate the three questions for the determination of the originating summons before the court as follows:

2. Whether by cumulative reading and proper construction of claimants’ letter of employment dated 22^nd January, 1987 and confirmation letter of appointment dated 10^th May, 1989 alongside the retirement letter from the defendant dated 9^th January, 2018, the defendant has power to have the claimant retired compulsorily?

Arising from the three questions which the Claimant has summoned the court to resolve, it is crystal clear that they relate to and focus poignantly on the compulsory retirement of the Claimant by the Defendant.

Secondly, the affidavit in support of the originating summons reveals that the Claimant was employed into the service of the Benue State Government on the 22^nd January, 1987 before the creation of Kogi State and upon the creation of Kogi state, her employment was transferred from the Benue State Government to the Kogi State Government. The Claimant added that until the abrupt termination of her employment in respect of which she seeks redress, she was the substantive Director of Administration and Finance (D.A.F) for the Kogi State Ministry of Health. She stated that before the termination of employment, there was a directive from the state governor for a 30 days compulsory leave which was extended beyond the 30 days and lasted for over one year. Claimant further deposed that she resumed work about the 23^rd November, 2017. She added that sometime in February 2016, the Kogi State Government embarked on compulsory screening and staff verification and the Committee recommended her for compulsory retirement on grounds that she had been stagnated at the same level for over eight years. She then wrote to the Governor a letter dated the 20^th of December, 2017 urging the Governor to rescind the decision of the Committee on her retirement. claimant deposed that although she was informed via a letter dated 17^th January, 2018 that her letter of appeal was receiving attention, she was eventually served with another letter dated the 9^th of January, 2018 via which she was informed that her services were no longer required and was directed to proceed on retirement.

The Claimant further stated that the letter does not contain any rules of disengagement or provision of law with which the Defendant acted upon to compulsorily retire her and as at the time of her compulsory retirement, she was yet to attain either 60 years of age or 35 years of service required for her compulsory retirement based on applicable public service rules. She concluded that the abrupt compulsory retirement has caused her a lot of psychological pains and trauma. See paragraphs 3-22 of the affidavit in support of originating summons.

That said, it is clear to all and sundry that there is nowhere in the entire paragraphs of the affidavit where the Claimant complained of being owed salaries prior to the compulsory retirement and as can be seen, it is the compulsory retirement of the Claimant which took effect via the letter dated the 9^th of January 2018 that impelled the Claimant to approach this court for redress and that, without any iota of doubt, is the cause of action and I so hold.

Having clearly established what the cause of action is, it is then quite appropriate to proceed to applying the yardsticks for determining whether or not this suit is statute barred. The first yardstick implores the court to find out when the cause of action accrued and having clearly found that the cause of action is the compulsory retirement of the Claimant as clearly manifested in the affidavit in support of the originating summons, the said compulsory retirement occurred on the 9^th of January, 2018 and that is the date the cause of action accrued.

The second yardstick requires the court to find out when this suit was initiated and without any controversy in this regard, the originating summons before this court clearly shows that this suit was commenced on the 24^th of May, 2018 as evidenced by the stamp of this court impressed on the process.

The third yardstick then requires the court to find the period of time prescribed for bringing an action as ascertainable from the statute in question. In this regard, the statute in question is section 2 (a) Public Officers (Protection) Law, Laws of Northern Nigeria, 1963 which is in pari material with section 2 (a) Public Officers Protection Act and which, as reproduced above, stipulates a period of three months within which an action must be instituted against a public officer.

Upon the findings above, the effect of the application of the yardsticks is that the limitation period of three months will begin to run from the date the cause of action accrued. In other words, the limitation period in this case would begin to run from the 9^th of January, 2018, the date upon which the letter of compulsory retirement was issued to the Claimant. The computation of that, along with the date this suit was instituted reveals that this suit was commenced 4 months and 15 days after the cause of action accrued.

The above notwithstanding, Counsel to the Claimant in opposition to the preliminary objection on the one hand contended that thissuit falls within the exception of the limitation period because the claimant has been continued to be denied benefits, salaries and entitlements as a result of the fundamentally flawed process of her compulsory retirement and this makes the cause of action a continuing one. Counsel to the Defendant contended against this position and maintained that there is a difference between the act and the resultant effect of the act.

Counsel to the Claimant on another hand also contended that the statute of limitation would not apply to cases where the public officer acted outside the color of his office or outside the statutory duty while counsel to the Defendant retorted that the retirement of the Claimant was in compliance with the provision of the Public Service Rules and carried out by the authority empowered to act. Also, the affidavit in support of the originating summons discloses no malice nor bad faith.

Furthermore, counsel to the Claimant posited that the suit is not statute barred because the statute of limitation does not apply to cases of contractual relationships. Counsel to the Defendant replied contending that the case cited by the Counsel to the Claimant has no bearing on contract of service/employment.

In resolving the above contentions, I would start from the last by stating categorically that statute of limitation applies to cases of contract of employment with the exception being in cases of unpaid salaries for work done and retirement benefits. The courts have long settled this position as the Supreme Court in UNIVERSITY OF JOS v DR. SANI MUHAMMAD ADAM (2015) 5 ACELR 106, held that section 2 (a) of the Public Officers Protection Act renders a cause of action based on termination of employment statute barred and unenforceable where brought outside the prescribed three months period and the Supreme Court has consistently applied the provision to employment in the public sector. See also FRIN v GOLD (2007) 11 NWLR (Pt. 1044) 1 and OLAGUNJU v PHCN PLC (2011) 10 NWLR (Pt. 1254) 113.

In furtherance of this position of the law, this court had stated in the case of MR. ALHAMDU DURAMI v INDEPENDENT NATIONAL ELECTORAL COMMISSION (unreported), SUIT NO:NICN/ABJ/62/2018, delivered on 25^th May, 2018, that:

“It is however noteworthy that where the labour rights are related to salaries and allowances for work done, it would be a good law to hold that same is not caught up by a limitation law as held in AG Rivers State v AG, Bayelsa State & Anor (2013) 3 NWLR (Pt.1340) 123 at 144-150. In such cases, the principle or exception that the cause of action is a continuous one would apply for every month that the salary is not paid as long as the employee is still in employment. See also the case of Ayemi & Ors v Total E & P Nigeria Ltd. (2016) 64 N.L.L.R (pt.226) at 314-315”.

In the instant case, it is resolved that the cause of action is one predicated on compulsory retirement and not failure to pay salaries or entitlement. In view of this resolution, I am in total agreement with learned counsel to the Defendant that there is indeed a difference between the cause of action and the resultant effect of the cause of action. I have taken a look at the Supreme Court authority cited by learned counsel to the Defendant i.e. the case of INEC v. OGBADIBO LOCAL GOVERNMENT & ORS(2015) LPELR-24839(SC) where the court held that:

“In Olaosebikan V. Williams (1996) 5 NWLR (Pt.449) 437 at 456, Salami, JCA, quoting Dickson J, had this to say: The issue is very well illustrated by the dictum of Dickson, J. in Michael Obiefina V. Alexander Okoye (1961) All NCR 357. At pages 360 and 362, Dickson, J. said “Continuance of injury or damage means continuance of the legal injury, and not merely continuance of the injurious effect of a legal injury. The continuance of the injurious effects of an accident is not a continuance of the injury or damage within the meaning of the Public Authorities Protection Act 1893: Halsbury (2nd Edition) page 771.” See also OMIN & ORS V. A.G CROSS RIVER STATE & ORS(2013) LPELR-21388(CA).

In the instant case, the Claimant was served with a letter of compulsory retirement only once and that is the only time the cause of action accrued. The resultant effect of which is that she is no longer in employment and is only axiomatic that she would not earn any salary from that date. Consequently, I find that the cause of action in this suit is not a continuing one and I so hold.

With regards to the contention of the Claimant that the Defendant acted outside the colors of his office or outside their authority,this court disagrees with the Counsel to the Claimant in this regard. The propriety of an act is distinct from whether a person has the power to act. The Claimant as an employee can be retired and the Defendant has the authority to retire her. How that retirement is done can then be challenged and to do so, the suit must be instituted within a stipulated period. This court had earlier noted in the case of DR. FAITH UWABHEL ROBERT v THE ATTORNEY-GENERAL OF THE FEDERATION & 3 Ors. (unreported) Suit No. NICN/ABJ/274/2016 delivered 10^th January, 2018 that:

“there seem to be a wrong appreciation of the holding of the court in the A.G. RIVERS STATE v A.G. BAYELSA STATE (supra) and ANOZIE v A.G. FEDERAL REPUBLIC OF NIGERIA (supra). The effect of the holding of the court therein is that generally, public officers are protected from prosecution but they can be prosecuted when they act ultravires. To prosecute such erring public officer, section 2 (a) then stipulates a time within which the victim must prosecute the erring officer which is within three months save it’s a continuing damage or injury in which case I have concluded that it is not with regards to this suit. See generally the case of JIBO v MINISTRY OF EDUCATION & ORS (2016) LPELR-40616”.

I have no reason or justification to depart from that decision.

It should be noted that the operative words in section 2 (a) are “shall not be instituted unless it is commenced within three months”. The word ‘within’ in my humble view is very essential in the interpretation of the said section 2 (a). The Black’s Law Dictionary, 6^thedition, p.1602 defines the word ‘within’ as “any time before, any time at or before, any time at the end of or any time at the expiration of or not beyond”.

In the case of ALADETAN V. OGUNYEMI & ORS.(2010) LPELR-3699(CA) the court held that:

“The word “within” is defined as: inside, enclosed by something within those four walls, not outside the limit of something, not beyond – see, Chambers 21st Century Dictionary.” PER OMOLEYE, J.C.A (P.24, para. F).

In view of the meaning of the word ‘within’, I find that it is within the power and authority of the Defendant to retire the Claimant. Generally, he who has power to hire also have same to fire. The Defendant would only have acted outside the color of his office if he had no power to terminate the Claimant’s employment which is not the case.The Claimant is contending against the process and validity of the retirement and not the authority.

Consequently, I find that the suit does not fall within the exception of the application of statute of limitation as the act is clearly within the color of the office and authority of the Defendant and I so hold.

Having said that, it is the position of this court that compliance with the statutory provision as to time of instituting an action within three months is a fundamental pre-condition, a breach of which is incurable and failure to comply with the statutory provision is fatal. In such a case, the court lacks jurisdiction to entertain the matter.

Furthermore, in view of the yardsticks for determining whether a suit is statute barred and in the circumstances of this case, I hold that time for instituting this suit began to run from 9^th of January, 2018 (day of compulsory retirement) and lapsed on the 8^th of April 2018 (the day three months elapsed). The institution of this action one month and sixteen days outside the statutory period had lapsed therefore resulted in the unpleasant consequence for the Claimant. The delay in filing has regrettably strayed outside the period stipulated by section 2 (a) of the Public Officers (Protection) Lawwhich permits no extension of time and is irreversible as this suit is statute barred.

What then is the effect of this suit being statute barred? The court in OBA J.A. AREMO II v S.F. ADEKANYE & ORS (2004) LPELR S.C 139/2000, held that:

Where a statute of limitation prescribes period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute barred, a plaintiff who might otherwise have a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation for instituting such an action has elapsed.See also EBOIGBE v NNPC (1994) 5 NWLR (Pt. 347) 649.

In even clearer terms, the court in CBN v UKPONG (2006) 13 NWLR (Pt.998) 555 at 568 G-H per Fabiyi J.C.A. (as he then was) stated 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. The 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., FEDERATION (1961).

This court noted in the case of ADENIYI OLUSOLA OJONGBEDE v INDEPENDENT CORRUPT PRACTICES AND OTHER RELATED OFFENCES COMMISSION (Unreported) SUIT NO:NICN/ABJ/206/2015 delivered on 22^nd day of June, 2018 that:

“While it may seem that this is a strict and harsh position of the law, it should be stated that even in equity, it is only the vigilant that is aided; not the indolent. This is captured in the maxim “Vigilantibus et non dormientibus jura subveniunt”meaning “The law aids the vigilant, not those who sleep”. See Black’s Law Dictionary, (9^th Edition) p.1879.

The effect of the above authorities is that it would be a monumental waste of precious judicial time to pry into the originating summons before this court in view of the fact that the filing of the said originating summons was at the time of filing, statute barred. In other words, this court is without jurisdiction to proceed into the determination of the originating summons and determining same would be an exercise in futility no matter how well condected.

The court has been enjoined to wash off its hands once it finds that a suit is indeed statute barred and this advice came in the case ofINEC v. OGBADIBO LOCAL GOVERNMENT & ORS (2015) LPELR-24839(SC) where the court held that:

“It is clear from the above judicial views on the basis of limitation law, once a defence of limitation of time is stated and grounded in the averments in support of the summons, (as in this case at hand) and it is established, this bars the plaintiff’s remedy and extinguishes the right of his action; then the Court will wash off its hands and decline to entertain the action. This in effect means that there is absolutely no basis for prying into the conduct of the Appellant howsoever which gave rise to the action…” See AMADI v. NNPC (2000) 6 SC (Pt.1) 66; INAKOJU v. ADELEKE (2007) 4 NWLR (PT.1025) 423.” Per GALADIMA, J.S.C.

In view of the forgoing, the sole issue for the determination of the preliminary objection is resolved in favour of the Defendant to the effect that this suit is statute barred and thereby robs the court of jurisdiction.

Where the court finds that it lacks jurisdiction to hear and determine a suit, the proper order the court should make is an order striking out the matter. See W.A.E.C v. Adeyanju (2008) 9 NWLR (Pt.1092) 270 at 296, paras. C-D (SC).

In the final analysis, I find the preliminary objection as raised by the Defendant to be competent and same is hereby upheld. Consequently, this suit is hereby struck out for lack of jurisdiction.

I make no order as to cost.

…………………………………………………………

HON. JUSTICE Z. M. BASHIR

JUDGE.