MRS. RACHEAL ALIYU NGANJIWA -vs- MOHAMMED LAWAN COLLEGE

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KANO JUDICIAL DIVISION

HOLDEN IN KANO

Before His Lordship:-

HON. JUSTICE E.D.E ISELE – JUDGE

DATE: 24^th DAY OF MAY, 2018 SUIT NO: NICN/MAID/03/2017

BETWEEN:

MRS. RACHEAL ALIYU NGANJIWA————————————————-CLAIMANT

AND

MOHAMMED LAWAN COLLEGE OF AGRICULTURE
MINISTRY OF AGRICULTURE AND NATURAL

RESOURCES BORNO STATE

MINISTRY OF HIGHER EDUCATIONDEFENDANTS
CIVIL SERVICE COMMISSION (BORNO STATE)
HON. ATTORNEY GENERAL AND COMMISSIONER

OF JUSTICE BORNO STATE

REPRESENTATION:

Claimant present. Defendants absent.

Azur, Esq. for the Claimant.
Lawal, Esq. P.S.C for all the Defendants.

RULING/JUDGMENT

The claimant filed this action on the 29^th June 2017 seeking the following:

The claimant is seeking for a declaration that her retirement from the services of the 1st Defendant vide letters of notices of retirement dated 16^th/09/2011 and 3^rd January, 2012 Refs Nos. MOLCA/PER/S/405/1/72 and MOLCA/PER/S/405/96 is premature, null and void.
An Order directing the Defendants to pay the claimant accumulated monthly salaries which were illegally withheld from her for 25 months commencing from 1^st January, 2012 till the date the claimant ought to have attained 35 years of service.

iii. Cost of this suit.

The writ was accompanied with a statement of claim (facts) and the claimant’s supporting affidavit, list of witnesses and list of documentary exhibits.

The Defendants entered appearance on the 25^th of July, 2017 and filed also a joint statement of defence on the same date together with a list of witnesses and documentary exhibit. On the 26^th January, 2018 the Defendants filed a motion on notice pursuant to Order 17 Rule 9 of the National Industrial Court Civil Procedure Rules 2017 and section 2 (A) Borno State Public Officers Protection Law Cap 115 Laws of Borno State 1994. By the motion the Defendants sought the following orders:

An Order of this court striking out Suit NO:NICN/MAID/03/2017 for being statute barred.
And for such Order or other orders as this court may deem fit to make in the circumstance.

The Motion was supported by the sworn affidavit of Mohammed A. Askira a counsel in the Attorney General’s chambers. Also filed along is the written address in support of the motion on notice. The claimant/Respondent filed a counter affidavit together with a written address on the 5^thday of February, 2018. The Defendant applicant in turn responded with a further and better affidavit filed on the 12^thday of February, 2018 and a written address in support, to which the claimant deposed to a further counter affidavit filed on the 19^thday February, 2018.

In the preliminary objection the deponent at paragraph 3 averred that the complainant was first given a first appointment on the 1^stday of August 1976 by Biu Local Education Authority Borno State and her retirement from service of the 1^st Defendants stops on 1^stday of August, 2011 having reached a mandatory 35 years of service. Referring to paragraphs 5 – 11 of the claimant’s statement of claim (facts) as being self-explanatory.

Indeed, it is her case that she first started work as a Grade II teacher with Biu Local Education Authority in 1976 on a temporarybasis and later abandoned the work and took up a fresh appointment with Maiduguri Metropolitan Council Local Education Authority in 1980 which appointment was confirmed in January 1982. From there she sought and got transferred to the 1^st and 2^nd Defendants where she enjoyed 3 promotions with the 1^st Defendant. She avers that she was serving the 1^st Defendant faithfully until the 3^rdday of January, 2012 when the 1^st Defendant abruptly retired her from service without her attaining 35 years of service.

The Deponent in the affidavit in support of the motion averred that during her employment with the Maiduguri LEA up to the college (i.e. 1^st Defendant), the claimant stated her 1^st appointment as 1^stday of August 1976 in different applications they made to the authorities which include:

Application for in-service training dated 12^th August 1988.
Application for in service training dated 15^th January 1989.

iii. Application for request for loan dated 22^nd December 1992

Application for promotion dated 8^thday of July, 1993
Application for stagnation of salary dated 10^thday of August, 1998. All these addressed to the Secretary of the Maiduguri Metropolitan Local Education Authority where she clearly stated 1976 as her first appointment. These letters were marked as exhibits A, B, C, D and E.

It was averred still that in another letter she wrote for adjustment of salary written to the Registrar College of Agriculture Maiduguri dated 25^thday of August, 2000 marked as exhibit F, she clearly stated her date of first appointment as 1^stday of August, 1976. That her Annual Performance Evaluation Report (APER) forms, marked in G series attached to the supporting affidavit also show she was 1^st appointed in 1976.

That she instituted her case before the court on 29^thday of June,2017 which is well over 5 years from 3^rdday of January, 2012 when she was issued her letter of retirement.

In the counter affidavit the claimant averred that when the 1^stApplicant’s letter dated 16^thday of October, 2011 with reference number MOLCA\PER\405\1\72 titled notice of retirement annexed as exhibit A, she protested the purported retirement by the letter dated 27^thday of October, 2011 annexed as exhibit B, to which the1^stApplicant by its letter dated January 12,2012 insisted that she stood retired from 30^thday of September, 2011.

She averred that noticing this position of the 1^st Applicant she wrote the 3^rd Applicant the letter dated 5^th February 2014 and she was replied by the letter dated 18^thday of February,2014 annexed as exhibit D.

Now the 4^th Applicant/Defendant by the letter annexed as exhibit E addressed to the 1^st Applicant informing it that the claimant was not due for retirement as at the 30^thday of September, 2011 and her purported retirement was improper. Now the two letters written by the 3^rd Defendant/Applicant/Objectors did not state that the claimant was not due for retirement. However by the letter dated 13/02/2012 ostensibly written by the 4^th Defendant Civil Service Commission of Borno State to the Provost of the 1^st Defendant. It is stated therein:

“I am directed to refer to your letter NO.MOLCA/PER/S/405/72 of 16^th September 2011 on the above subject matter and to inform you that Racheal A. Nganjiwa of General Studies Department of your college is not due for retirement.

I am further to state that though the officer was initially employed by Biu L.E.A. as class Teacher in 1976, she abandoned that employment and took up a fresh one with Maiduguri Metropolitan Council L.E.A in January 1980 and was later transferred to Ministry of Agriculture from where she was then posted to your college.
In view of paragraph 2 above, you will therefore consider 1^stJanuary 1980 as the date of her 1^stappointment in the service and not 1976.

The commission therefore hopes that you will put the records straight, please.

Signed: Ibrahim Hamma

SECRETARY

FOR CHAIRMAN

Ref No: BO/R/D46

13/02/2012

CC:

The Hon. Commissioner,

Ministry of Agriculture

Maiduguri.

Above for your information and records, please.

Signed: IBRAHIM HAMMA

SECRETARY

FOR CHAIRMAN”

Now two letters that came after the Civil Service Commission letter (above) and exhibited by the claimant, above one dated 18^thday of February, 2014 written by the 3^rd Defendant Ministry of Higher Education to the provost of the 1^st Defendant headed: Re: Retirement from Mohammed Lawan College of Agriculture Maiduguri

That letter reads:

“I am directed to draw your attention to the above subject matter via letter dated 5^th February 2014 by one Mrs. Racheal Aliyu Nganjiwa which was copied to you and to inform you that in accordance with Edict establishing the college and the powers of the staff welfare committee, you are to liaise with the Chairman Civil Service Commission to sort out this matter once and for all.

Please find attached some relevant documents for your guidance and necessary action, please.

Signed: Ali Yahaya Chibok

Director Admin and Supply

For Hon. Commissioner.

CC:

Mrs. Racheal Nganjiwa

Above is for yourInformation please

Signed: Ali Yahaya Chibok

Director Admin and Supply

For Hon. Commissioner.

The second letter written to the from the 3^rd Defendant is dated 3^rd Defendant 2014. It is headed: RE: SECOND REMINDER.

It reads:

“With reference to your letter dated 7^th August, 2014 on the above subject matter, I am directed to inform you that on the receipt of your complain, the Ministry constituted a 3 man committee to critically study, analyze and find out details on the matter.

The committee submitted its report in September 2013. The then Hon. Commissioner called for a top management meeting in which you were in attendance to do justice to your case. At the end management directed that the matter be referred back to your college who were your employer.
Based on the resolution of the committee, the provost was communicated to take up the matter holistically.
The letter under reference was written to your college on the 18^thday of February, 2014 for ease of reference.
You are therefore advised to henceforth liaise with your employer on all matters, please.

In the written address in support of the Respondents counter affidavit a sole issue was formulated for determination:

“Whether in the circumstances of the affidavit evidence and surrounding facts, this suit is statute barred.”

Counsel referred to the case of YOUNG V. WESTERN POWER DISTRIBUTION (SOUTH WEST) PLC (2003) IWLR 2868, where he submitted it had been held that a cause of action accrues when every fact necessary to prove it traversed in order to support a claim for judgment is complete so that the aggrieved party can begin and maintain his cause of action. Similarly a continence of legal injury until the time it abates should be taken into consideration in determining the aggregate facts constituting the cause of action. Referring to the cases of AGEDAR V. CHIEF R.O NKWOCHA & ANOR (2001) FWLR PT. 57 P. 868 at 874; P.N UDDOH TRADING Co. LTD V. ABERE & ANOR 2001 (FWLR) PT. 57. P. 900 at 916-917.

Counsel stated that where suit is subject of a limitation period, time willingly begin to run when all the aggregate facts constituting the cause of action come to a close. That in the case where an employee explores all the internal avenues or machinery for the resolution of his complaint against his employers action against him, it was submitted that the cause of action becomes complete only when the machinery is exhausted, and time for the purposes of the determination of the limitation period will commence from hence. That in the light of the law espoused it cannot be said with the case law cited that the respondent’s suit is statute barred. This, it was stated that the respondent engaged the Applicants jointly and severally in seeking to resolve the wrongful act of the 1^st Applicant and the 5^th Applicant then advised the Respondent/Claimant seek remedy in court in view of the Applicant’s recalcitrant attitude.

Counsel stressed as the claimant had done in her counter affidavit that the 4^th Defendant/Applicant is the Agency responsible for the employment, promotion and discipline of all civil servants in Borno State, of which the Respondent was the one before the 1^st Applicant unlawfully retired her. That the 4^th Defendant made admission against interest when it admitted in its letter of 13/02/2012 that the claimant was not due for retirement as at the 30^th of September, 2011 citing the case of ODUTOLA V. PAPERSACK (NIG) LTD (2007) ALL FWLR PT 350 P 1214 at 357. Referring also to section 24 of the Evidence Act. Counsel submitted that time for the purpose of limitation will start running from the period the Respondent exhausted the internal machinery of administratively resolving the Respondent’s complaint.

In the further and better affidavit of the Applicants at paragraph 3.a it is deposed that the suit is statute barred because between the said 7^th day of March, 2016 when her letter to the 5^th Applicant was responded to and the date she filed her suit is well over one year. The claimant cannot rely on negotiation as a ground to cure late filling of her suit. In the reply address in support of the further and better affidavit. Counsel insisted that the claimant’s respondent’s reliance on negotiation between her and the applicants cannot save her case, that she was expected to have acted in time by filling her suit before going for any negotiation, citing the unreported case of MOH’D BELLO & 8 ORS VS. GOVERNING COUNCIL KASHIM IBRAHIM COLLEGE OF EDUCATION MAIDUGURI in Appeal No: CA/J/12/2014 delivered on 22^nd day of August, 2016 by the Court of Appeal Jos, where the appeal of the Appellants was dismissed because the action they filed was outside the limitation period prescribed by the Borno State Public Officers Protection Law.

COURT’S DECISION

I have taken time to outline the case of both parties on the strength of the affidavit evidence each one of them mustered in respect to the motion on notice filed by the Defendants Applicants seeking to oust the court’s jurisdiction because the suit as filed by the claimant was filed outside the 3 month limitation period prescribed by the Borno State Public Officers Protection Law.

From the deposition of the claimant as relied on by the claimant her last correspondence with the 5^th Defendant was dated the 22^ndday of August 2016. Even though any discussion was or might have been going on at the times leading to her filing this suit, it did not stop time from running and the suit is clearly caught by the limitation law in the Borno State Public Officers Protection Law as relied on by the Applicant’s. In the case of JOHN EBOIGBE V. THE NIGERIAN NATIONAL PETROLEUM CORPORATION (1994) part 347, 694-775. The Supreme Court held per Adio JSC at page 660 – 661, paras G – B that:

“The appellant did not institute the presentation until one year and some months after the respondent had made it abundantly clear that it was not going to pay the appellant for the appellant’s crops allegedly destroyed……the appellant issued a writ in June 1985, about 14 months after it had been made clear to the Appellant that the respondent did not admit liability. Whatever right the appellant had was completely statute barred at the time he commenced this action.”

On whether negotiations between parties estops the period of limitation from running, the court held per Adio JSC that:

Although the law does not prohibit parties to a dispute from engaging in negotiation for the purpose of settling the dispute generally such a negotiation by the parties does not prevent or stop the period of limitation stipulated by a statute from running. Counsel for the claimant had submitted that the 4^th Defendant Applicant in Exhibit E made an admission against interest when it stated in the letter that the claimant was not due for retirement as at September 2011. This situation, I find still does not help the claimants case for the following reasons:

For the fact that the limitation period had elapsed.
The 4^th Defendant did not employ the claimant it only made a statement in her favor, which as I can see contradicts the documentary pieces of evidence tendered by the claimant as shown in exhibits A, B, C to E in the affidavit of Mohammed Askira documents prepared by, filed by the claimant and belonging to her. By her own admissions she admitted she commenced her career in 1976 even though she discontinued that employment, she consistently filled that 1976 as her date of 1^st appointment. And when 35 years had run by she turned and said it had to start counting from the 1980 date, if it were actually so, then she would have filled the date of 1980 as the appropriate date which is not the case here. I hold that the letter in Exhibit E written by the 4^th Defendant cannot oust what the claimant herself had admitted and been relying on all those years.
As the primary employer of the claimant the 1^st, 2^nd Defendants were not bound to follow the opinion or view of 4^th Defendant being a parastatal of the State Government. As the view expressed in exhibit E was not founded in the Public Service Rules.

In the premise of the suit in NICN/MAID/03/2017 is hereby struck out for being statute barred.

There are no awards as to costs.

Parties are to bear their own costs.

Ruling is entered accordingly.

____________________________

Hon. Justice E.D.E. Isele, Presiding