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NIGERIA UNION OF LOCAL GOVERNMENT EMPLOYEES & 6 ors –

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IN THE NATIONAL INDUSTRIAL COURT OF N1GERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE THE HONOURABLE JUSTICE E. N. AGBAKOBA

 

DATED 26TH JUNE,  2018                                                 

SUIT NO: NICN/ABJ/299/2016

 

BETWEEN:

  1. NIGERIA UNION OF LOCAL GOVERNMENT EMPLOYEES
  2. DUNIYA LALLAI
  3. SHEYIN A. DAMBO
  4. GARBA Y. ASHAFACLAIMANTS
  5. PATRICKY.SIDI
  6. PHILIP M. BAYERO
  7. MOHAMMED AMINU SULEIMAN

(Suing for themselves and on behalf of other affected

staffs or retirees)

 

AND

  1. THE GOVERNMENT OF KADUNA STATE
  2. THE ATTORNEY GENERAL OF KADUNA STATE         DEFENDANTS

 

REPRESENTATION

  1. Bako Esq for the Claimants
  2. M. Samson Esq for the Defendants

 

JUDGMENT

  1. The Claimants filed a Writ of Summons on 23rd August, 2016 accompanied by the Statement of Facts, and Statement on Oath against the Defendants jointly and severally are as follows:

 

(a)    A Declaration that the compulsory retirement of the Claimants from their various offices in the Kaduna State Unified Local Government Council without complying with the provisions of the Kaduna State Operational Guidelines for Unified Local Government Service 2012, is unconstitutional, null and void, and a breach of the law.

 

(b)   A Declaration that none of the affected staff has put in 35 years of service in the Council or attained the age of 60 years for retirement prior to the action of the 1st Defendant as reflected in the letter dated 3rd February 2016.

 

(c)    A Declaration that none of the affected Heads of Department have served in Grade Level 16 for 8 years continuously without moving to the next level, or for 4/8/ years on Grade level 17 as provided by the Operational Guideline 2012.

(d)   A Declaration that prior to the retirement letters dated 3rd February 2016 being served on the Claimants, no notice was given or any salary paid in lieu of such notice given to the Claimants till date.

 

(e)    A Declaration that the purported retirement of the Claimants from the service of the Kaduna State Unified Local Government Council without due regard to the provisions of the law, breached their constitutional rights as citizens of Nigeria who are entitled to work and earn salary until the age of retirement.

 

(f)    A Declaration that the Claimants are still in the employment of the Kaduna State Unified Local Government Service and entitled to stay in their respective posts in the services of the Kaduna State Local Government Council until after 35 years in service or 60 years.

 

(g)   An Order setting aside the purported retirement of the Claimants and reinstating them to their respective positions in the Local Government Service with their full salaries paid and to continue enjoying same with benefits until the age of retirement.

(g)

(h)   An Order directing the 1st Defendant to pay all the Claimants outstanding salaries and entitlements from the 3rd February, 2016 to date and to continue enjoying same till the age of retirement.

 

(i)     An Order awarding the sum of N100,000,000.00 to the Claimants against the 1st Defendant for the pains, embarrassment and psychological trauma caused the Claimants, family members and their children who are now sent out of school to become street boys and girls.

 

(j)     Cost of this action

 

IN THE ALTERATIVE.

(a)     An Order directing the 1st Defendant to compute the salaries and entitlements of the Claimants from the 3rd February 2016, to their respective dates of retirement being 35 years in service or 60 years of age which is earlier forthwith.

(b)    An Order directing the 1st Defendant to pay forthwith in addition the gratuity of the Claimants taken into account 35 years in service or 60 years of age at retirement and pension to be received at retirement.

 

  1. The Defendants filed their STATEMENT OF DEFENCE on 11th July, 2017.

 

  1. Wherein the Defendants stated that it is not mandatory that an employee of the Unified Local Government Service in the State shall remain in service until he attains the age of 60 years or he has served a maximum of 35 years in the service before he can be retired.

 

  1. In that the Local Government Service Commission has the power to retire the Claimants even if they have not spent 4 — 8 years on grade level 16 and even if they were yet to attain 60 years of age or 35 years in service by virtue of its powers under section 67(2) of the Local Government (Administration) Law, 2012.

 

  1. The Defendants averred that the introduction of the Tenure Policy at both Federal and State level did not confer the staff of the Unified Local Government Service the right to rise to grade level 17 in the Unified Local Government Service and proper notices of retirement were served on the claimants.

 

  1. Admitting that the Operational Guidelines of the Unified Local Government Service, 2012 is inferior to and subject to section 67(2) of the with the Local Government (Administration) Law, 2012 and is null and void to extent of its inconsistency with the Local Government (Administration) Law, 2012.

 

  1. The Defendants denying paragraphs 17, 30, 31, 33, 34 and 35 of the statement of claim stated that the Claimants haven been retired and are no longer entitled to salaries but to gratuity and pension for which they have to wait in the queue like every other pensioner for their turn to start enjoying their pension and subsequently gratuity as is the case for every retiree in the State.

 

  1. The Defendants averred that the inclusion of the names of some of the claimants as ghost workers and deceased persons was not deliberate but due to human error and that the retirement of the claimants is in compliance with section 67(2) of the Local Government (Administration) Law, 2012 and does not need to be in compliance with the Operational Guidelines which is contrary to the Tenure Policy and section 67(2) of the Local Government (Administration) Law, 2012. And that the Claimants’ retirement was done in compliance with the law i.e. section 67(2) of the Local Government (Administration) Law, 2012; that the Claimants’ retirement was not a disciplinary action.

 

  1. The Defendants admitted that even though the Notices of Retirement dated 3rd February, 2016 served on the Claimants did not state that they be paid three month salary in lieu of notice, the Claimants were all eventually paid 3 months’ salary in lieu of notice.

 

  1. WHEREOF the Defendants shall urge at the trial that all the claims of the Claimants be dismissed.
  2. The Defendants/Applicants filed a NOTICE OF PRELIMINARY OBJECTION on 7th February, 2018 praying for AN ORDER striking out this suit in limine for lack of jurisdiction.

 

  1. GROUND FOR THE OBJECTION
  2. The Claimants’ action is statute—barred by virtue of section 2(a) of the Public Officers (Protection) Law, Cap.126, Laws of Kaduna State, 1991.

 

  1. WRITTEN ADDRESS IN SUPPORT OF NOTICE OF PRELIMINARY OBJECTION

 

  1. ISSUE

Whether the Claimants’ suit is statute—barred under section 2(a) of the Public Officers (Protection) Law, Cap.126, Laws of Kaduna State 1991 and liable to be struck out for lack of jurisdiction?

 

  1. Learned Counsel to the Defendants submitted that the issue of jurisdiction is very fundamental and a court must consider and dispose of it first before going into the merits of a case, since any adjudication without jurisdiction amounts to a nullity. Hassan v. Aliyu [20101 All FWLR (pt.539) 1007 @pp.1038 — 1039, paras. C —C; Hassan & Ors v. Borno State Govt. & Ors [20161 LPELR-4o25o(CA) pp.19 — 20, paras. B — C; Section 2(a) of the Public Officers (Protection) Law, Cap. 126, Laws of Kaduna State, 1991. Defence Counsel further submitted that there are two conditions precedent to the application of Section 2(a) of the Public Officers (Protection) Law; the two conditions are:

(a)    it must be established that the person against whom the action is commenced is a Public Officer or a person acting in the execution of public duty within the meaning of that Law; and

(b)   the act done by the person in respect of which the action is commenced must be one done in pursuance of or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority.

 

  1. Ibrahim v. Judicial Service Committee [19981 12 SCNJ.255 @ pp. 272 — 273 lines 40 — 5; Jibo v. Ministry of Education & Or [20161 LPELR 40616 (CA) @p.34, paras. B — C.
  2. It is Defence Counsel’s submission that the word “public officer” under Public Officers (Protection) Law extends to artificial persons (i.e. corporate public bodies) and not just persons in the limited sense of the word, public agencies like the Defendant in this case are therefore covered by the protection offered by Section 2(a) of the said Law. Ibrahim v. Judicial Service Committee [supra] @pp. 278 — 279 lines 37 — 3, Per lguh, JSC.

 

  1. Furthermore, that in order for a court to determine whether a matter is statute-barred or not, the court is required to look at the writ of summons and statement of claim alone to determine the limitation period.  Hassan u. Align [supra] @p.1o63, paras. G —C. Arguing that in a situation where an application is brought to terminate an action in limine on the grounds that the action is statute-barred, it is not proper for the trial Court to infer or conclude from the pleadings that the protection afforded the Defendant by the law has been vitiated by malice or bad faith. For what the trial court is obliged to decide at that stage is whether the action is maintainable and not whether the Defendant is liable. Hassan v. Aliyu [supra] @pp.1o65 – io66, paras. H — B; Fajimolu v. University of Ilorin [20071 All FWLR (pt.35o) 1361 @ p.1373, para. F F; Egbe v. Alhaji [19901 3 S.C. (pt.1) 63 @ pp. 80 — 81, lines 35 – 35, per Uwais, JSC (as he then was).

 

  1. The Respondents filed an 8 paragraph COUNTER AFFIDAVIT TO PRELIMINARY OBJECTION on 26th March, 2018 and deposed to by Nwokolo Christopher Chizoba Esq. also filing a WRITTEN ADDRESS IN SUPPORT OF COUNTER AFFIDAVIT TO PRELIMINARY OBJECTION

 

  1. With the sole ISSUE

(a)   Whether the Claimants’ suit is statute barred under Section 2(a) of the Public Officers (Protection) Law Cap. 126 Laws of Kaduna State 1991 bearing in mind other documents made including specifically the one dated 8th August 2016 requesting all staff affected to prove their employment.

 

  1. Learned Counsel to the Claimant submitted that the cause of action is not statute barred against the Respondents for the sole reason that it was not commenced three (3) months after the letter was served bearing in mind the contents of the above paragraphs in the statement of claim, specifically paragraph 25 of the claim and the letter dated 8th August 2016. KADZI INTERNATIONAL LTD. Vs. KANO TANNERY CO. LTD. (2004) 12 W.R.N. 131 at ratio 10 (P. 155) lines 20 45; of SAVAGE AND OTHERS Vs. UWACHIA (1972) 3 SC 314, 221; (1970) 1 ALL NLR (Pt. 1) 251; UNIJOS Vs. IKEGWUOHA (2013) 9 NWLR (Pt. 130) 478 at rat (Pp. 494, paras. C — E, 504, Paras C — E). Claimant’s Counsel argued that it is glaring from paragraph 25 of the Claim that besides the letter of 3rd February 2016, the letter from the Office of the Governor dated 8th August 2016, contains issues which shows that the termination purportedly claimed to be done on the 3rd February 2016, is inchoate. That this is because the staff’s names were put off for the time being and further requested to prove their employment under the Unified Local Government Services. CHEVRON NIG. LTD. Vs. LD.N. LTD. (2007) 36 W.R.N. I at ratio 9 (Pp. 28 — 29) lines 45 — 25.

 

  1. The Defendants in turn filed a REPLY ON POINTS OF LAW  filed on 10th May, 2018. Making submissions on one additional issue.
  2. DEFENDANTS’ ADDITIONAL ISSUE

Whether the Claimants are entitled to file and rely on a Counter-Affidavit in opposition to the Defendants’ Preliminary Objection?

 

  1. Counsel contended that the Defendants in filing their Notice of Preliminary Objection against the Claimants’ suit did not file an Affidavit in Support of their Preliminary Objection. That this is in line with several decided authorities to the effect that in determining this type of Preliminary Objection, the courts are only required to look at the Writ of Summons and the Statement of Claim which are already before the court. Hassan v. Aliyu [supra] @p.1063, paras. D — G.

 

  1. He submitted that the Claimants are not entitled to file and rely on a Counter-Affidavit to a non-existent Affidavit in Support. Bode v. Mubi Emirate council & Ors f2016j LPELR-4o800(CA) @pp. 21 — 22, paras. E — D, Per Georgewill, JCA.

 

  1. He argued that the Claimants/Respondents’ action of filing a Counter-Affidavit is an attempt by the Claimants to overreach the Defendant by bringing new facts, and rehashing facts and documents already part of this pleadings in an attempt to tempt this Court to go into the merits of the substantive case in determining the Defendant’s Preliminary Objection, he urged the Court to discountenance the said Counter-Affidavit, and hold that the claimants cannot rely on it and to strike it out based on the foregoing submissions. Akaninwo & Ors v. Nsirim & Ors f2008j LPELR-321 (SC) @pp. 43 — 44, paras. G — C, per Niki Tobi, JSC; Khaljfa v. Onotu & Anor f2o16J LPELR-41163(CA) @PP.41 – 42, paras. B – C.

 

  1. CLAIMANTS/RESPONDENTS’ ISSUE

Whether the Claimants’ suit is statute-barred under section 2(a) of the Public Officers (Protection) Law, Cap. 126, Laws of Kaduna State 1991 bearing in mind other documents made including specifically the one dated 8th August 2016 requesting all staff affected to prove their employment?

 

  1. It is Counsel’s submission that the Claimants’ cause of action arose on 3rd February, 2016 when they were served with the Retirement letters dated the same day. Eboigbe v. N.N.P.C f19941 5 NWLR (pt.347) 649 @13.659, para. A.

 

  1. Furthermore, that once the period of limitation begins to run, it is not broken and it does not cease to run, that there was nothing in the letter dated 8th August, 2016 that will stop the period of limitation from continuing to run. Eboigbe u. N.N.P.C fsupra] @13.663, para. A.

 

  1. Counsel submitted that Claimants’ Appeal for reinstatement and the letter dated 8th April, 2016 cannot stop the period of limitation from running. That the position of the law is very clear even where there are negotiations to settle the dispute or appeals by the Claimants and consideration of the appeal by the employer (government in this case), the period of limitation does not cease to run merely because the parties are engaged in a negotiation or effort to resolve the issue. Eboigbe V. N.N.P.C. [supra] @ 659, paras, F — G.

 

  1. Counsel contended that the cases of Kadzi International Ltd v. Kano Tannery Co. Ltd [supra], Savage & Ors v. Uwachia [supra], UNIJOS v. Ike gwuoha [supra] and Chevron Nig. Ltd v. LDN Ltd [supra] are irrelevant considering the issue raised by the preliminary objection, the said authorities were merely definitions of “cause of action”, they have not shown how the Claimants’ cause of action is not caught up by the limitation period provided under Section 2(a) of the Public Officers (Protection) Law, after they failed to file their suit within three months of the occurrence of the act complained of (i.e. their retirement on 3rd February, 2016).

 

  1. Counsel further submitted that the Pre-action Notice issued by the Claimants’ Counsel on the Defendants was not required by any law and the Pre-action Notice cannot break or stop the limitation period from running its course. Eboigbe v. N.N.P.C. [supra] @P.663, para. G.

 

  1. On the             10th June, 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for ruling

 

Court’s Decision

 

  1. Having carefully summarized the position of both sides, the arguments of opposing Counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this Ruling and specific mention would be made to them where the need arises. The issue for determination in this application to my mind is whether there is any merit to the Defendant’s Application.
  2. Before I address the merits of the Defendants Application, it is necessary to spare some words as regards the Reply on point of law process filed in this matter and the new issue raised therein.
  3. The law is well settled on the requirements or contents of a reply on point of law process BASINCO MOTORS LTD. V. WOERMANN-LINE & ANOR. [2009] LPELR – 756 [SC] PP. 41 – 42, PARAS. A – D:

 

  1. The Defendants are merely required to  pin-point the exact point of law being replied to. To reply on points of law, the points of law being replied to must be clearly identified by way of rephrasing and then the reply follows. The reply is to show that that point of law newly raised in the address of the other Counsel is misconceived or not applicable to the case at hand or distinguishable or has been overridden by new or later authoritative statement of the law. Counsel instead just started readdressing the Court without showing to the Court what point of law it is that he was replying to. Right of reply on points of law, I must state emphatically, is not another avenue to join issues with the claimant or re-argue the Defendants’ case I have therefore most carefully combed through the so-called reply on points of law in juxtaposition with the Defendants’ Written Address in support of their NPO and the Claimant’s Written Address and cannot find anything that resembles a reply on points of law. What I found was an attempt to re-beautify the original final written address of the Defendants as well as introduce new issues. The position of the law is as was stated in ALI v. BAYERO UNIVERSITY (2014) 42 NLLR (PT. 130) 258 NIC @ 266.  The introduction of new argument by Counsel when replying on points of law is not allowed as it is overreaching, since the other party has no opportunity to reply to it. Such argument will be discountenanced.
  2. Bearing that in mind I want to consider the additional issue raised by the Defendants that as the Defendants in filing their Notice of Preliminary Objection against the Claimants did not file an Affidavit in Support of their Preliminary Objection the Claimants are not entitled to file a Counter Affidavit. It is not debateable in law, in fact, it is trite that in determining a Preliminary Objection, the courts are only required to look at the Writ of Summons and the Statement of Claim which are already before the court. However because the Defendants have made heavy weather of the competence of claimants Counter Affidavit is necessary that the court makes this clarification.

 

  1. Now I am aware that in line with many decided cases as was followed in BODE v. MUBI EMIRATE COUNCIL & ORS (2016) LPELR-40800(CA) it has been held “Firstly, a Counter Affidavit filed against a non existence Affidavit in Support of any Application before the Court is a strange document and thus unknown to the Rules of this Court. Secondly, by the succinct Rules of this Court, vide Order 10, Court of Appeal Rules, a Respondent has the right, if he so considers it necessary, to raise preliminary objection against the competence of a Notice of Appeal and in response by Order 11 thereof, an Appellant who intends to reply to the preliminary objection has the liberty to do so by way of a Reply Brief.

 

  1. I have, in the interest of doing substantial justice, taken the time to scan through all the provisions of the Court of Appeal Rules 2011 together with the Court of Appeal Act 2004 to see if there is any provision for the filing of a Counter Affidavit by an Appellant in response to issue(s) raised in a Respondent’s Notice of Preliminary Objection and, with due respect to the learned Senior Counsel for the Appellant, no such provision(s) can be found. All my concerted efforts in that regard were to no avail. The Counter Affidavit of the Appellant remains therefore, strange and unknown to the proceedings in this appeal.” Per GEORGEWILL, J.C.A. (Pp. 21-22, Paras. E-D).

 

  1. I am also aware that in KOLAWOLE IND. CO. LTD. v. AG. OF THE FEDERATION & ORS (2011) LPELR-9096(CA) The correct reply to a Notice of Preliminary Objection is a Counter Affidavit. He cited MANSON V. HALLIBURTON ENERGY SERVICES LTD (2007) 2 NWLR pt. 1018 Pg 211 at 227-228 where the Honourable Justice Thomas JCA noted as follows:

“What learned Counsel for the 1st Respondent should have done in opposition to the Applicants’ Notice of Preliminary Objection is by filing of Counter Affidavit.

 

  1. What I can make out from these authorities is that the processes to be filed in response to Applications are dependent, subject and conditional on the content of the particular Court Rules. In the National Industrial Court of Nigeria Civil Procedure Rules 2017 Order 17 Rules (9) –( 11) provide as follows;-
  2. (9) Every motion including Notice of Preliminary Objection shall be accompanied by a Written Address, and an advance copy of same shall be forwarded by the Defendant or Respondent or Defendant/Respondent’s Counsel to the Claimant or any other party in the matter within seven (7) days of filing.
  3. (10) Where a Respondent served with a motion on notice intends to oppose the application, the Respondent shall file a Counter-Affidavit (if any) and a Written Address within seven (7) days of the service on the Respondent of such Application. An advance copy of the Counter-Affidavit and Written Address shall also be forwarded to the Claimant and any other party.
  4. (11) Where a Counter-Affidavit together with a Written Address is served on the Claimant /Applicant, the Claimant/Applicant may file a Further and Better Affidavit to deal with new issues arising from the Respondent’s Counter Affidavit and a Written Reply on points of law within seven (7) days of service. An advance copy of same shall be forwarded to the Defendant or Respondent.

 

  1. I find that the Rules of this court permit the filing of a Counter Affidavit in response to a Preliminary Objection, as this enables the responding party to put forward his factual argument in response to the Preliminary Objection and as by our Rules the objector is entitled to file a Further and Better Affidavit the question of overreaching does not arise. I find and hold. I resolve this issue against the Defendant.

 

  1. In deciding whether a case is statute barred or not, the court only has to look at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which give rise to the cause of action and comparing that date with the date the Writ of Summons was filed. If the time on the Writ of Summons is beyond the period allowed by the Limitation Law, the action is statute barred. See KANU v. ENUGU BROADCASTING SERVICE & ORS. (2014) 46 NLLR (PT. 148) 243, ELABANJO v. DAWODU (2006) 6 – 7 SC 24. AGBOROH v. WAEC (2014) 43 NLLR (PT. 134) 31 NIC @ 34

 

  1. In the instant case a perusal of the file reveals that the 23rd August 2016. From the Claimants reliefs and pleadings I find that the cause of action in this suit is the compulsory retirement of the Claimants from their various offices in the Kaduna State Unified Local Government Council by a letter dated 3rd February 2016. And in respect of their Alternative claim I find that the cause of action is the non payment of their salaries from the 3rd February 2016. See also paragraphs 2 and 6 -14 in the statement of facts.
  2. The statute in question is section 2(a) of the Public Officers Protection Cap. 126, Laws of Kaduna State, 1991., which provides as follows –

 

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.

 

(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:

 

Provided that if the action, prosecution or proceeding be at the instance of any      person for cause arising while such person was a convict prisoner, it may be   commenced within three months after the discharge of such person from            prison.

 

  1. The next issue to be determined here is whether the Defendants are not entitled to the protection of this Act.

 

  1. To whom does the POPA apply or is the Public Officer Protection Act applicable to this suit.
  2. The word Public Officer has been defined in section 7(1) of the Public Officers (Special provision) LFN2004 (formerly Act No. 10 of 1976) to mean;- “ any person who holds or has held office in

(b) the public service of a state or federal government…

(c) the service of a body whether corporate or unincorporated established under a Federal or State Law.

 

  1. Section 318(1) of the CFRN 1999 defines “Public service of a State to mean service in any capacity in respect of  the Government of the State and includes service as (c) any member or staff of any commission or authority established for the State by this constitution or by an Law of the House Assembly and (d) Staff of any Local Government Council  .”

 

  1. In FGN Vs ZEBRA [2002] LPELR 3172 SC. The Supreme Court held that a public officer as stipulated in Section 2A Public Officers Protection Act which is in pari materia with the Section 2(a) Public Officers Protection Law of Kaduna State, not only refers to natural persons sued in their personal names but they extend to public bodies, artificial persons, institutions or persons sued by their official names or titles PER MOHAMMED JSC. Also see the cases of   ALHAJI ALIYU IBRAHIM Vs. JSC KADUNA & ANOR [1998]14 NWLR (Pt.583) p.1 and SULGRAVE HOLDINGS INC. &19 ORS Vs. FGN & 3ORS[2012]17 NWLR (Pt.1329) p.309 at 338.

 

  1. From the foregoing I find that the Defendants are entitled to the protection afforded by the Public Officers Protection Law.
  2. In determining whether an action is caught up by the Limitation Law, the Writ of Summons or other initiating processes of the action and the Statement of Claim showing when the cause of action arose, are to be considered and compared with the date of filing the Suit. A cause of action refers to the facts or combination of facts which a plaintiff must adduce to entitle him to the reliefs claimed. See Onnoghen JSC (as he then was) in HASSAN Vs. ALIYU (2010) 17 NWLR (pt. 1223) 547.” AGORO v. HON. MINISTER OF FCT & ORS 2018 CA  Per YAHAYA, J.C.A. (P. 14, Paras. B-E) By simply mathematical calculation 23rd August 2016 – 3rd February 2016 = 5 months and 20 days. The Public Officers Protection Law of Kaduna State gives a three (3) month moratorium for the institution of all actions against a public officer like the defendant an din this case the mater was brought (5) five months and 20 days after the cause of action arose and two month 20 days after the limitation period had ran out.

 

  1. The Claimant had raised two distinct arguments as to why this case would not be caught up by Section 2(a) POPL firstly that by virtue of the issues raised in the Defendants letter of 8th August 2016 which required they prove their employment.  The retirement letter is inchoate and cannot be statute barred. Secondly, they raised the contention of having served a Pre-action Notice on the Defendants.

 

  1. With regard to the first contention as the letter of 8th August 2016 and their arguments in paragraph 25 of their statement of fact.  Now, the limitation law takes effect from the date the cause of action arises and in this case the cause of action has been found to be the compulsory retirement of the Claimants, which they contend occurred without recourse to due process. The letter of 8th August 2016 and its request for proof of employment cannot be a cause of action.
  2. Having been served the letter of compulsory retirement the Claimants employment had come to an end. The Claimant right to take legal action had crystalized. The matter was ripe for adjudication. The Claimant could come to court. If their letter of compulsory retirement had been wrongfully issued, only one of two things could achieve a reversal that is; reverse this position and that would be a letter of the Defendants uncontrovertibly reversing the compulsory retirement or an order of court quashing or setting aside the said letter with an order for their restatement. The letter of 8th August is not the former I find. As for the latter, I will come back to this issue subsequently. The letter of 3rd February I found determined the Claimant employment and gave rise to this cause of action. Courts have always viewed any discussion that goes on between parties after cessation of employment as negotiation. In the unreported SUIT NO: NICN/IB/09/2013 ADIO ADESHINA K. Vs. UNIVERSITY OF IBADAN & 2 ORS. January 20th 2014 this court considered this very position and held that “the appeal letter written by the Claimant and the defence correspondence in response can at best be considered negotiation as no admission, correspondence or negotiation can revive a statue bared case, See OWNWERS OF MV “ARABELLA V NIGERIAN AGRICULTURAL INSURANCE CORPERATION [2008] 5-6 SC (Pt. II) 189 and EBOIGBE V. N.N.P.C. (1994) 5 NWLR (PT. 347) 649 AT 658, PARA. F

 

  1. And in EBIOGE Vs. NNPC supra, the Apex Court also had this to say; -“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. The law is that when in respect of a cause of action, the period of limitation begins to run, it is not broken and it does not cease to run merely because the parties engaged in negotiation. The best cause for a person to whom a right of action has accrued is to institute an action against the other party so as to protect his interest or right in case the negotiation fails. If, as in this case the negotiation does not result in a settlement or in an admission of liability, the law will not allow the time devoted to negotiation to be excluded from the period which should be taken into consideration for the determination of the question whether a claim has become statute-barred.” THE ATTORNEY-GENERAL, WESTERN NIGERIA (1976) WNLR 39 (p. 659, paras. F-H: p.660, paras. D-E)

 

  1. In ISHAQ v. RECTOR (JIGAWA STATE POLYTECHNIC) & ANOR. (2014) 42 NLLR (PT. 131) 428 NIC 431 also it was held that Time spent negotiating will not stop time from running. Even an admission during proceedings cannot revive an action commenced outside of the limitation period. An appeal to emotions cannot be sustained. EKEOCHA v. CUSTOMS, IMMIGRATION & PROVISIONS SERVICE BOARD (2007) ALL FWLR (392) at 1985.

 

  1. And that “The best cause for a person to whom a right of action has accrued is to institute an action against the other party so as to protect his interest or right in case the negotiation fails”. UKWUOM V. FEDERAL MINISTRY OF SPORTS & SOCIAL DEVELOPMENT & ORS. (2007) 7 N.L.L.R. (PT. 18) 275 CA, See NWADIALO V. SHELL PETROLEUM (1990) 5 NWLR (PT. 150) 322 (P. 297) PARAS. G-H.

 

  1. The Claimant also raised the issue of having served the Defendants a Pre-action Notice. The Defendants maintain that there is no requirement of any law for a Pre-action Notice which anyway would not break or stop the limitation period from running its course. The Claimant had not shown the court the law that they were obeying in serving a Pre-action Notice, to enable the court determine the nature of the legal provision or requirement if any. In the circumstance the Claimants argument is unsubstantiated and therefore fails.

 

  1. A right of action if successful would have entitled the Claimants for an order of this court setting aside the letter of compulsory retirement but this right I find has been extinguished section 2(a) POPL. The Court of Appeal Jurist, Garba JCA in NNPC v. ESHIET 2018 LPELR CA (PP. 8-10, PARAS. C-B) put it this way “An action which was instituted or commenced after the expiration of the period of time stipulated and limited in the provisions of a statute or law, being invalid and incompetent for contravention of the statute or law, deprives a Court of law of the requisite competence or jurisdiction to entertain and/or adjudicate over it. The issue of an action being statute barred is one which goes to and affects the jurisdiction of a Court to entertain the action. HASSAN VS. ALIYU (SUPRA). AGI VS. ENO (2000) 5 NWLR (1188) 626, OWNERS OF MV ARABELLA VS. NAIC Supra. Once an action is statute barred, the Court is robbed or deprived of the judicial power or jurisdiction to entertain it.”

 

  1. This matter having been caught up by the POPL of Kaduna State, the Defendants NPO has merit and hereby succeeds.  I find the Claimants right of action is abated and no relief can validly be sought or given in order to enforce this stale claim, this suit is bereft of the requisite competence hence this Court is robbed of jurisdiction to determine this matter.

 

  1. The Claimants case is hereby dismissed.

 

  1. This is the Court’s Judgment and it is hereby entered.

 

…………..………………………………..

HON. JUSTICE E. N.  AGBAKOBA

PRESIDING JUDGE ABUJA

 

 

 

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