IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP, HON. JUSTICE I.J. ESSIEN Ph.D
DATE: 30TH APRIL, 2018.
SUIT NO.:NICN/EN/786/2014
BETWEEN:
MRS. THERESA E. OBICHUKWU================== CLAIMANT
AND
BOARD OF MANAGEMENT (UNIVERSITY
OF BENIN TEACHING, HOSPITAL, (UBTH)
BENIN CITY & 2 OTHERS===================== DEFENDANTS
REPRESENTATION:
G.C. Igbokwe Esq. for the Claimant
N.L. Omorodion Esq. for the Defendant
JUDGMENT
The defendant by a motion on notice dated 14th November, 2016 and filed on the 15th November, 2016 sought an order dismissing this suit No. NICN/EN/786/2016. The grou nds upon which the motion is predicated is that;
1) This suit is statute-barred by virtue of section 2(a) of the Public Officers (protection) Act Cap P.41 laws of the Federation of Nigeria 2004.
2) The action before the court was not properly initiated according to law.
In support of the application is a 4 paragraph affidavit and a written address of the defendant counsel.
The defendant also filed a further Affidavit on the 8th June, 2017. The claimant in response to the defendant process filed a counter affidavit of 13 paragraphs on the 1st June, 2017 annexed to the counter Affidavit is a written address of the claimant counsel.
In his written address the learned counsel for the defendant/applicant, Mr. N. L. Omorodion formulated two issues for determination –
1) Whether the suit of the claimant is not statute barred and therefore robs the court of jurisdiction
2) Whether the action is not improperly initiated thereby robbing the court of jurisdiction to entertain same.
The learned claimant/respondent counsel Mr. G.C. Igbokwe also formulated two issues for determination to wit:
1) From the facts and circumstances of this action whether the defendants can be protected and/or take benefit of the Public Officers Protection Act Cap P.41 LFN 2014.
2) Whether this action is properly initiated before this court.
I have carefully studied the circumstances of this case and the issues formulated by both counsels. It is the considered opinion of this court that the issue for determination that will sufficiently address the issue in contention in this preliminary objection is
Whether this court has jurisdiction to entertain this suit and if this court has jurisdiction, whether this suit was instituted within the time allowed by the limitation Act.
In determining the jurisdiction of the court, a careful scrutiny must be made of the law vesting jurisdiction on the court alongside the claims brought before the court. The court of Appeal in the case of Akindele V. Abiodun [2008] LPELR – 8557 has this to say
. . . It is a time-hallowed settled principle of law that in determining the jurisdiction of a court, the law vesting jurisdiction on the court has to be examined in the light of the relief sought by a plaintiff it the relieves sought come within the jurisdiction of the court as portrayed by the facts of the reliefs sought, the court shall assume jurisdiction as it then has jurisdiction on the matter. On the contrary if the reliefs sought do not come within the jurisdiction of the court as portrayed by the facts there of the court must decline adjudication as it has no jurisdiction in the matter.
See Babale V. Abdulkadir [1993] 3 NWLR (pt 281) P.253, Trade Bank Plc V. Beni Inx Mg. Ltd [2003] 9 NWLR (pt.825) P.416. See also Action Congress V. INEC [2007] LPELR – 8988. CA
The jurisdiction of this court is vested by S.254 C (1) which provides
1) Notwithstanding the provision of section 251, 257, 272 and anything contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil cases and matters
- a)relating to or connected with any labour, employment, trade union, industrial relation and matters arising from work place, the condition of service including health, safety, welfare of labour, employee, worker and matters incidental thereto or connected therewith.
- d)relating to or connected with any dispute over the interpretation and application of the provision of chapter IV of this constitution as it relates to any employment labour, industrial relations trade union employers association or any other matter which the court has jurisdiction to hear and determine.
Having established the jurisdiction of this court the next step is for this court to determine whether the claims of the claimant fall within the jurisdiction of this court set forth above.
This matter was transferred from the Federal High Court to this court pursuant to the order of the Federal High Court made on the 25th June, 2014. Before the Federal High Court, the claimant in suit No. FHC/B/CS/122/13 had sought to enforce the claimant’s fundamental right to fair hearing pursuant to S.36 (1) (4) and (6) and Article 7 of the African Charter on Human and People’s Right. The relieves sought in that suit are the same and exact relieves contained in the amended statement of claim filed on the 1st June, 2017. The relieves are relieves consequent upon the enforcement of fundamental rights. The claimant admits this much in the process filed in this proceeding.
The claimant in paragraph 4 of the counter affidavit states:
- b)That my main cause of action in this matter is my purported trial for the criminal offence of forgery and fraud by a panel of inquiry in breach of my Fundamental Human Right to fair hearing and freedom from trial for a criminal offence other than by a court of competent jurisdiction
Furthermore in his written submission on page 6 under the heading FUNDAMENTAL RIGHTS ENFORCEMENT, the claimant counsel submitted
The plaintiff’s case is principally to enforce her fundamental human right of freedom from trial for a criminal offence other than by a court or Tribunal set up by law to do so as provided in S. 34 (4) of the constitution of the Federal Republic of Nigeria and Article 7 of the African Charter.
These are clear admission by the claimant counsel that the claimant is before this court to enforce their fundamental right.
The claimant has also argued that because there is a labour relationship between the claimant and the defendant, this court has jurisdiction to entertain this suit on the application of S. 254 C 1 (d) of the 1999 Constitution as amended.
On the other hand, the defendant counsel has argued that in as much as the claims of the claimant is for the enforcement of fundamental human right as revealed in paragraph 4 (b) of their counter affidavit this court on the authority of SSAUTHRIA1 V. OLOTU [2016] 14 NWLR Pt 1531 at 1.
I must state that the argument canvassed by the learned counsel for the claimant/respondent on this issue is misconceived.
By the provision of S. 254 c(1) d, this court would only be vested with jurisdiction over the interpretation and application of chapter IV of the Constitution if it relates to any dispute arising from or relates to any employment, labour, industrial relations, trade unionism, employers association or any other matter which the court has jurisdiction.
The claimant in this action is not challenging here compulsory retirement from her employment or any labour related breach. For which this court would have investigated the alleged breach of the claimants right to fair hearing. Rather this action is for the enforcement of fundamental human right of the claimant.
The court of Appeal in the case of SSAUTHRIA1 VS. OLOTU “supra” has established the jurisdictional competence of this court when considering chapter IV of the 1999 Constitution when it held;
The National Industrial Court has limited jurisdiction on disputes relating to the provisions of chapter IV of the 1999 Constitution of the FRN. The jurisdiction of the National Industrial Court is only in respect of disputes over the interpretation and application of the provisions of chapter IV as it relates to employment, labour, industrial relations, trade unionism, employers or any other matter which the court has the jurisdiction to hear and determine and not the enforcement of the rights specified under the chapter. Therefore the National Industrial Court has no jurisdiction to hear and determine the appellant’s originating application for the enforcement of their specified fundamental rights as enshrined in chapter IV of the Constitution and the African Charter on Human and People’s Right (P. 18, para B – H)
On the strength of the above authority this court holds that the subject matter of this suit is not within the jurisdictional competence of this court. Accordingly the claims of the claimant are hereby dismissed for want of jurisdiction.
On the other ambit of the issue for consideration in this suit; the defendant counsel has argued that this suit is statute barred as it was filed in violation of S. 2 (a) of the Public Officers Protection Act Cap P.41 LFN 2004. Counsel argued that a cursory look at paragraph 21 of the statement of claim shows that the claimant’s cause of action arose on or before 18th January, 20011 while the action was filed on 6 June 2013 a period of 33 months after the cause of action arose.
The said paragraph 21 of the amended statement of claim reads –
Claimant aver that the 1st and 2nd defendant also implemented the sentence of her compulsory retirement as recommended by the panel of enquiry vide their letter ref. No. PS/4886/110 of 18th January 2011 removing her from office, claimant shall found upon copy of same at trial.
On this issue the claimant counsel made no concise argument in position to same neither did counsel state or convince the court that this suit falls under any of the exceptions to the application of S. 2(a) of the Public Officers Protection Act.
The Supreme Court in Ibrahim V. Lawal [2015] 17 NWLR (pt 1489) 490 p. 522 has held that;
In order to determine the period of limitation, one has to look at the writ of summons and the statement of claim to see when the wrong was committed which gave the plaintiff a cause of action and comparing the date with the date on which the writ summons was filed. This can be done without taking oral evidence from witness. If the time on the writ is beyond the period allowed by limitation laws, then the action is statue barred.
See also the case of Egbe V. Adefarasin [1987] 1 NWLR pt. 47 (referred to)
I have found out that by a memo No. PS-4886/11of 18th January, 2011 the claimant was compulsorily retired from office. As at that date the claimant cause of action had accrued. By the provision of S,2 (a) the Public Officers Protection Acts, the claimant action challenging her removal from office ought to have been instituted with 3 months from the 18th January, 2011. However the claimant waited until 6th November, 2013 to institute this a action, a period of 33 months had elapsed. Even assuming that this court has jurisdiction to hear this case which I have earlier started in this judgment is not the case. This action would be statute barred and I so hold.
On the other issues raised by counsel in their written submission, I think there is no need to consider those issues for they will amount to mere academic exercise.
This preliminary objection succeeds and this suits according dismissed.
Hon. Justice I. J. Essien
(Presiding Judge)
