PTE TIJANI HAMZA YUNUSA -VS- THE MILITARY PENSIONS BOARD & ors

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HONOURABLE JUSTCE E. N. AGBAKOBA

DATED 19^TH JUNE, 2018 SUIT NO.: NICN/ABJ/55/2016

BETWEEEN

PTE TIJANI HAMZA YUNUSA CLAMANT

AND

THE MILITARY PENSIONS BOARD
THE NIGERIAN ARMY DEFENDANTS

REPRESENTATION

D. DAUDA for the claimant with F. ALMUSTAPHER, M.S. BUHARI andE. A. ONI.
M. ATTAH for the defendant with M. A. ADANU, R. OKO, C. E. EZEUKWU and C. OBOH.

JUDGMENT

The claimant, by a General Form of Complaint filed on 12^th February, 2016 along with the accompanying frontloaded documents, approached the Court for the following reliefs:
An Order of mandamus compelling the Defendants particularly the 1st Defendant acting through its servants and agents to pay to the Claimant with immediate effect all accrued Pensions for the Claimant’s 15 years and 4 days’ meritorious service in the Nigerian Army calculated with effect from 31st of July, 1984 till date on the basis of the emoluments currently earned by his serving counterparts in the Nigerian Army as prescribed under the Federal Government Policy on Harmonisation of Pensions.

An Order of this Honourable Court directing the Defendants to pay to the Claimant all subsequent pensions as at when due on the basis of the emoluments currently earned by his serving counterparts in the Nigerian Army as prescribed under the Federal Government Policy on Harmonisation of Pensions.

iii. An Order of injunction restraining the Defendants acting through their servants or agents from distorting the quantum of the Claimant’s pensions or doing anything to obstruct the payment to the Claimant pensions due to him at the prevailing rate prescribed under the Federal Government Policy on Harmonisation of Pensions.

General damages in the sum of N10, 000, 000. 00 (Ten Million Naira) for the hardship suffered by the Claimant occasioned by the delay in payment of his retirement benefits.

Cost of action.

The Claimant’s Case

The Claimant averred that he was enlisted into the Nigerian Army on the 27th of July, 1969 with Regimental Number: 63NA/223059 and served diligently until he was voluntarily discharged on the 31st of July, 1984 having attained the rank of Private. Following his 15 years and 4 days of meritorious, disciplined, and dedicated service, the Claimant, upon voluntary resignation, was issued an Army Discharge Certificate, making him eligible for monthly pensions and gratuity. However, since his discharge on the 31st of July, 1984, the Claimant has not received any monthly pension. Additionally, ill heath spanning from several years hindered the Claimant’s ability to approach the 1st Defendant or seek redress in Court for non-payment of his monthly pensions.

During the period of the Claimant’s affliction, his Army Discharge Certificate was destroyed in a fire which razed his house down in Kaduna State. Upon several attempts at the Headquarters Command Army Records, Lokoja, to keep track of his record with the Nigerian Army, the Claimant wrote an application for the re-issuance of his Discharge Certificate, the former having been destroyed by fire. The Claimant was subsequently reissued an Army Discharge Certificate, however payment of his monthly pensions still remained outstanding. Letters demanding payment of his monthly pensions were written on behalf of the Claimant to the 1st Defendant and the Chief of Army Staff respectively, both of which were disregarded. Being dissatisfied with the non-payment of his outstanding monthly pensions, the Claimant instituted this instant suit before this Honourable Court.

The Defendants filed a JOINT STATEMENT OF DEFENCE on 26^th April, 2016.

The Defendants denying paragraphs 4 —6 of the Claim averred that the Claimant joined the army when the war was almost ending and has not shown any special duty that he should be so recommended and commented as alleged. Defendants further averred that the Claimant served for only 9 years and 269 days including the war bonus and never served for 15 years to be entitled to pension. However the Claimant was duly paid his gratuity to the tune of one thousand five hundred and thirty-two naira (N1 532.00) only, sometime in September 1978.

Reacting to paragraphs 7 -12 of the Claim, Defendants averred that the Claimant was never ill as alleged but have decided to forge a discharge certificate to enable him claim pension from the defendants when he was not qualified to be paid the said pension having served for only 9 years and 269 days including war bonus.

Defendant denying paragraphs 13 — 19 of the Claim averred that the Claimant never merited any payment of pension and that is why the defendants cannot be compelled to pay him what he does not deserve.
WHEREOF the Defendants deny the entire claims of the Claimant and urged this honourable court to dismiss the suit with a substantial cost to the Defendants.

At the trial, the Claimant testified on his own behalf as CW; while Sgt. Bako Tanko, of the Records Department of the 1^st Defendant, testified as DW. Thereafter, parties filed their respective Written Addresses. The Defendant’s Final Written Address is dated and filed on the 8^th November 2017, while the Claimant’s is dated and filed on 4^th December 2017. The Defendant’s reply on points of law was filed on 13^th December 2017.

The DEFENDANTS FINAL WRITTEN ADDRESS was filed on 8^th November, 2017.

Wherein the Defendants formulated the following three (3) ISSUES
Whether this suit is not statute barred in view of the date the Claimant alleged he was discharged from the Army and when this case was filed (31st July, 1984 – 12th February, 2016.)

Whether this suit is not caught up by the Public Officers protection Act?

iii. Whether the Claimant has been able to prove his case as required by the Law or not.

ON ISSUE 1

Whether this suit is not statute barred in view of the date the Claimant alleged he was discharged from the Army and when this case was filed (31st July, 1984 – 12th February, 2016.)

It is Defendant’s Counsel’s submission that the Claimant’s case is caught up by the statute of limitation. In that the Claimant’s case is a suit based on contract and that the statute of limitation prohibits any case involving contract instituted after 6 years. Section 7(1)(a) of the limitation Act cap 522 the laws of the Federation of Nigeria 1990.

He submitted that jurisdiction is fundamental and crucial, it is in fact a threshold matter and that where a court has no jurisdiction, any action taken will be a nullity however well conducted. Osakwe V. Federal College of Education and 2 Ors (2011) 3. S.C NJ (p 531).

Defence Counsel submitted that a cause of Action is the entire set of circumstances giving rise to an enforceable claim, that it is in effect, the fact or combination of facts which give rise to a right to sue. Ojukwu vs. Yar’Adua (2009) 4 S.C.N.J 282. Furthermore, that “cause of Action is defined as denoting every fact which it would be necessary for the Plaintiff to prove, if traversed, to support his right to judgement of the court, it is also an act on the part of the defendant which gives the Claimant a cause to complain. Lasisi Fadare & ors V A-G Oyo State (1982) 4 S.C 1 at 7.

Counsel to the Defendant also submitted that there is a close relationship between cause of Action and jurisdiction of a court to entertain an action; that in Madukolu Vs Nkemdilim (1942) 1 ALL NLR 587, the ingredients of jurisdiction were set down as follows-:

A court or tribunal must be properly constituted with respect to the number and qualification of its members.
The subject matter of the Action must be within its jurisdiction.

iii. The action is initiated by due process of law.

Any condition precedent to the exercise of its jurisdiction has been fulfilled.

Therefore, that the said action or inaction has left the Claimant with a bare and empty or hallow cause of action which he cannot enforce because the alleged cause of action is statute barred and cannot be maintained. SULGRAVE HOLDING INC VS FGN (2012) 17 NWLR Pt 1329 309 at 243 paragraph G, per Justice Fabiyi, JSC. Defendant Counsel submitted that for the court to determine when an action is statute barred recourse has to be made to the writ of summons and statement of claim only. And that in this case in hand, the Court is urged to look at relief in the writ of summons. AG ADAMAWA STATE VS AG FEDERATION (2014) NWLR (pt 1428) 515 at 565.

It is Counsel’s submission that the period of limitation is to be determined by looking at the writ of summons and the Statement of Claim only, to ascertain the alleged date the wrong in question, giving rise to the Claimant’s cause of action was commenced with the filling of the writ of summons. If the time contained in the writ of summons or the statement of claim as the time the cause of action arose is beyond the period allowed by the limited law, then the action is definitely statute barred. AMUSAN V OBIDEYI (2005) 6 SCNJ 91 at 99; Elabanjo vs Bawodu (2006) 6 SCNJ 204 at 227; N.P.A VS LOTUS (2005) 12 SCNJ 165 at 182 – 183; Section 7 of the LIMITATION ACT” CAP 522.

Counsel to the defence further submitted that to determine whether there is a reasonable cause of action, the court is guided and directed to restrict itself to the writ of summons and the statement of claim of the Claimant and nothing else. Shell BP Ltd. Vs. Onasanya (1976) NSCC 333 at 336; Christian I. Yare Vs National Salaries Wages and Income Commission (2013) 5 S.C.N.J 406, per C.B Ogunbiyi; Chief br. Felix Amadi and African Political System CAPS) V I.N.E.C and Chibuike Rotimi Amaechi and P.D.P (2012) 2 5.C.N.J 163, per O.O. Adekeye.

ON ISSUE 2

Whether this suit is not caught up by the Public Officers protection Act?

Learned Counsel submitted that in the case of UDO V. C.S.C. AKWA IBOM STATE & OTHERS 2006 LPELR 11564; It was held that for section 2(a) of the Public Officers Protection Act to avail any person, two conditions must be satisfied, namely:

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 duties within the meaning of the law.

The act done by the person in respect of whom the action is commenced must be done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of such law, duty or authority. EKEOGU V. ALIRI 1990 NWLR (Pt. 126) 345.

Furthermore, that the Chief of Army Staff who is in charge of the 2nd Defendant in this suit is a public officer within the meaning of Public Officer Protection Act. Moreover, that the activities of the Defendant complained about by the Claimant was done in the cause of official duty within the confines of public duty. AG RIVER STATE VS AG BAYELSA STATE (2013) NWLR (PT. 1340) 123 at 148 -150 paragraphs F-A; SULGRAVE INC. V FGN (2012) NWLR (Pt. 1329) 309, Galadima JSC.

IN THE ALTERNATIVE:

ON ISSUE 3

Whether the Claimant has been able to prove his case as required by the Law or not.

Defence Counsel argued that the mere tendering of an alleged discharge certificate is not enough to prove that the Claimant served till 1984 as alleged and that the Claimant has to further prove that he served in the Nigerian Army till 1984. He urged the Court to hold that the Claimant is unable to prove his case as required by the law and therefore the case should be dismissed in its entirety.

The CLAIMANT’S FINAL WRITTEN ADDRESS was filed on 4^th December, 2017.

ISSUES
Whether on the preponderance of evidence adduced in the case, the Claimant is entitled to his claims as contained in his Complaint Form having worked with the 2nd Defendant for 15 years and 4 days.
Whether on the preponderance of evidence adduced in the case, the Defendants’ have proved their allegations of forgery against the Claimant.

iii. Whether on the preponderance of evidence adduced in the case, the Claimant is entitled to the award of N 10,000,000.00 (Ten Million Naira).

ON ISSUE 1

Whether on the preponderance of evidence adduced in the case, the Claimant is entitled to his claims as contained in his Complaint Form having worked with the 2nd Defendant for 15 years and 4 days.

Learned Counsel to the Claimant submitted that the Defendants could not present any evidence of purported payment. The law is settled that a document speaks for itself and oral evidence can not in any way override a written document. Saidu v Abubakar [2008] 12 NWLR. pg. 301. paras. B-C. He submitted that from the evidence adduced in the cause of trial, there is no doubt that the Claimant’s claim outweighs that of the Defendants with credible evidence adduced before this Honourable Court as the Claimant has been able to established his case on the preponderance of evidence by establishing facts which cripple the case of the Defendants. Such was the decision of the Supreme Court in the case of Mrs. Vidah C. Ohochokwu v AGF Rivers State (2012) 6 NWLR @ Page 84 Paras D, per Mukhtar J.S.C. Furthermore, that the Defendants could not refute with credible evidence the claims of the Claimant and that the effect of unchallenged and uncontroverted evidence by an adverse party is that such evidence is sufficient for the Court to act on. CBN & Ors v Okijie (2015) LPELR-24740 (SC).

Claimant Counsel argued that it is safe to say that by no stretch of legal imagination, can the Public Officers Protection Act, or any other Act of the National Assembly for that matter, prescribe or proscribe upon officers of the Nigerian Armed Forces above and beyond that which the Armed Forces Pensions Act itself prescribes, as the latter was specifically and specially promulgated for that purpose, and operates to the exclusion of all other general provisions, especially as regards the time afforded, if any, a retiree to commence an action for remission of pension. Kasim v N.N.P.C. CA 46 [2013] 10 NWLR (Pt 1361); Eboigbe v. N.N.P.C. [1994] NWLR (Pt. 347) pg. 659 per Adio J.S.C. Furthermoer, that following from this, it is clear that it is where the special statute in question, in this case, the Armed Forces Pensions Act, prescribes a period within which an action may be instituted, failure to do so within the stated time renders the cause of action unenforceable. Sanda v Kukawa Local Government [1991] 2 NWLR (Pt. 174) pg.

ON ISSUE 2

Whether on the preponderance of evidence adduced in the case, the Defendants’ have proved their allegations of forgery against the Claimant.

Learned Counsel submitted that it is the duty of the person who asserts something to prove same and that where a claim is not contested by an adverse party, it is deemed admitted. Union Bank of Nigeria Plc. v Anor. V. AIh. Aminu Ishola (2001) 15 NWLR PT. 735 pg. 47 at pg. 81 paras. B-C.

Counsel argued that to appreciate the allegations levied against the Claimant, one must first consider the legal definition of forgery’ and that in Garba v C.O.P [20071 16 NWLR (Pt. 1060)C.A 378, Musdapher J.S.C, cited the definition forgery in Nigerian Air Force v Kamaldeen [2007] 7 NWLR (Pt. 1032) pg. 191-192, paras. H-B.

Again, that the offence of forgery as alleged by the Defendants in this suit gives it a criminal flavour. That as posited by Jauro J.C.A. in F.R.N v Ibrahim [2015] 4 NWLR (Pt. 1450) pg. 430 paras. F-G, the ingredients of the offence of forgery are as follows:

“That the accused made, signed, sealed or executed the document in question or any part’ of it; or that it was made by someone else.
That it was made under the direction or with the knowledge of the accused person.

iii. That the accused made it with some specific intent or dishonestly or fraudulently.”

Counsel contended that by virtue of the above provision, the Defendants are saddled with the burden of proving that not only has the Claimant allegedly fraudulently forged his discharge certificate, but that he knew or had reason to believe that same was forged. That it is not enough to allege that the Claimant forged his discharge certificate, albeit issued by the Defendants. Nigerian Air Force v James [2002] 18 NWLR (Pt. 798) pg. 295, per Onu, J.S.C.

Furthermore, that the Defendant’s in this instant suit have to discharge the burden of proving their allegation of forgery against the Claimant of his discharge certificate beyond any reasonable doubt. And that proof beyond reasonable doubt does not pertain to every aspect of the case, as it can be satisfactorily discharged where there is no evidence adduced contradicting the testimony alleging forgery. Omage J.C.A in Ezendoka v N. S. Eng. Co. Ltd (No. 2) [2002] 6 NWLR (Pt. 762) pg. 219, paras. A-F.

ON ISSUE 3

Whether on the preponderance of evidence adduced in the case, the Claimant is entitled to the award of N 10,000,000.00 (Ten Million Naira).

Citing the case of Emokpae v Stanbic-IBTC P.M. Ltd [2015] 17 NWLR (Pt. 1487) pg. 72, paras. F-H, per Ikyegh J.C.A., Counsel submitted the effect of the Defendants have been founding wanting of proof of their defence against the claims of the Claimant, thus entitling the Claimant to all his reliefs as sought. Incar (Nig.) Ltd v Benson Transport Ltd(1975) LPELR-SC.134). That it is trite that awarding damages serves to compensate the wronged party and punish the offending party beyond the payment of compensation. Eliochin (Nig.) Ltd v Mbadiwe [1986] 1 NWLR (Pt. 14) pg. 14.

It is Counsel’s submission that general damages should be awarded based on established principles of law in order to arrive at a fair, reasonable and just decision. Ozigbu Eng. Co. Ltd. v. Iwuamadi (2009) NWLR (pt. 1166) R 65-66, F-B, per Garba, J.C.A.; Access Bank Plc v Mr. Ethel O Ugwuh (2013) LPELR — 20735 (CA).

REPLY ON POINTS OF LAW filed on 13^th December, 2017.

Learned Counsel contended that the Claimant is completely wrong in law to submit through his Counsel that “the operable statute governing the payment of the Claimant’s pension is nothing other than the Armed Forces Pensions Act CAP A23 Laws of the Federation, 2004”. And that “this statute robs all others of power to govern matters relating to payment of pension of officers of the Armed Forces”.

He submitted that the Armed Forces pension Act Cap A23, Laws of the Federation, 2004 can only come into play if the Court has the jurisdiction to determine on merit the right of the Claimant to whether he is qualified to be paid or not. However, we submit that the Claimant has come too late to the Court to ask the Court to cause the Defendants to pay him his pension having allegedly served for some period which according to him has fallen within the period he was entitled to pension.

It is counsel’s submission that the Claimant deliberately omitted claim for gratuity having collected same in 1978. And that for him to be qualified to collect pension after collection of the gratuity, Section 3 of the Armed Forces Pension Act Cap 23 has to be proved by the Claimant and such conditions were never proved by the Claimant assuming that the Court has Jurisdiction.

Counsel further submitted that since the Armed Forces Pension Act did not provide for time limit within which one can challenge the failure to pay a qualified pensioner his dues, the statute of limitation has made a provision for failure to demand or challenge any failure in contract or obligation within 6years when such action arose. And that in the case at hand, the action arose since 1984 after the Claimant has collected his gratuity in 1978, but apparently did not collect his gratuity and yet claimed to be entitled to only pension from 1984.

On the 24^thApril 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for this judgment.

Court’s Decision

I have carefully summarized the evidence 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 Judgement and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether the Claimant is entitled to the reliefs sought in this suit.

The claimants are seeking the reliefs:
An Order of Mandamus compelling the Defendants particularly the 1st Defendant acting through its servants and agents to pay to the Claimant with immediate effect all accrued Pensions for the Claimant’s 15 years and 4 days’ meritorious service in the Nigerian Army calculated with effect from 31st of July, 1984 till date on the basis of the emoluments currently earned by his serving counterparts in the Nigerian Army as prescribed under the Federal Government Policy on Harmonisation of Pensions.

An Order of this Honourable Court directing the Defendants to pay to the Claimant all subsequent pensions as at when due on the basis of the emoluments currently earned by his serving counterparts in the Nigerian Army as prescribed under the Federal Government Policy on Harmonisation of Pensions.

iii. An Order of Injunction restraining the Defendants acting through their servants or agents from distorting the quantum of the Claimant’s pensions or doing anything to obstruct the payment to the Claimant pensions due to him at the prevailing rate prescribed under the Federal Government Policy on Harmonisation of Pensions.

General damages in the sum of N10, 000, 000. 00 (Ten Million Naira) for the hardship suffered by the Claimant occasioned by the delay in payment of his retirement benefits.

The Defendant have raised an jurisdictional issue which by law being a threshold matter requires to be resolved before any other determination in this suit.

The defendants are contending that the Claimant’s case is caught up by the statute of limitation. In that the Claimant’s case is a suit based on contract and that the statute of limitation prohibits any case involving contract instituted after 6 years. Section 7(1)(a) of the limitation Act cap 522 the laws of the Federation of Nigeria 1990 and that the Chief of Army Staff who is in charge of the 2nd Defendant in this suit is a public officer within the meaning of Public Officer Protection Act entitled to the protection afforded by Section 2a of the Public Officers Protection Act 2004 LFN.

The position of the law as regards Limitation laws has been restated copiously and in the case of INDEPENDENT NATIONAL ELECTORAL COMMISSION V OGBADIBO LOCAL GOVERNMENT & ORS. (2015 Legalpedia SC PYX5) the Supreme Court had this to say with regard to the essence of the limitation law.

“I must state here that the Limitation Law does generally either of two things; it either bars the remedy without extinguishing the right or bars the remedy and at the same time extinguishes the right. Whichever effect it has will depend on the particular statute. However there is a general consensus that all limitation laws have the effect of closing the doors of the court against the plaintiff’.” PER S.GALADIMA, J.S.C

And in the case of ALHAJI (DR) ADO IBRAHIM V. ALHAJI MAIGIDA U. LAWAL (2015 Legalpedia SC P8T9) The Supreme Court held that “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.” PER J. I. OKORO, J.S.C.

Similarly, in INDEPENDENT NATIONAL ELECTORAL COMMISSION V OGBADIBO LOCAL GOVERNMENT & ORS Supra the Apex Court held thus with reference to the essence of the Public Officers Protection Act ‘The essence or effect of the Public Officer Protection Act herein, is to extinguish the cause of action if it is commenced after the stipulated period, which is three months, subject to the exception provided for in section 2 of the Act: ‘Thus where there has been a continuance of injury or damage, a fresh cause of action arises from time to time, as often as damage or injury is caused’ See Aremo v Adekanye (supra), Battishee v Reed (1856)18C8.69C at 714.” PER S.GALADIMA, J.S.C.

The Supreme Court continued that “ In 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 plaintiffs, 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, even as being suggested here by the learned Counsel for the Respondents. See Amadi v. NNPC (2000) 6SC (pt.l) 66; Inakoju v. Adeleke (2007) 4 NWLR (PT.1025) 423.” PER S.GALADIMA, J.S.C.

And Supreme Court had this to state as regard the effect of limitation Laws “It is settled law that a limitation law, such as the provisions of section 2 (a) of the Public Officers Protection Act, takes away the legal right of a litigant to enforce an action leaving him with an empty shell of a cause of action where the action is not instituted within the time frame enacted in the statute of limitation.” PER W.S.N. ONNOGHEN,J.S.C.

Also “The effect of a limitation law such as the Public Officers’ Protection Act (supra), as has been stated in numerous decisions of this court is that it deprives the court of jurisdiction to entertain a matter instituted outside the limitation period and it also forecloses a litigant’s right to enforce a cause of action, which he might otherwise have had, once the stipulated time for bringing the action has elapsed. The right becomes extinguished by effluxion of time. See: Egbe Vs Adefarasin (1987) l NWLR (Pt.47)1: Ibrahim Vs J.S.C (1998) 14 NWLR (Pt.584)1: Ajayi Vs Adebiyi (2012) 11 NWLR (Pt.1310) 137: Alhaii Ado Ibrahim Vs Alhaji Maigida U. Lawal & Ors. (2015) LPELR – SC.99/2009 delivered on 5/6/2015.” PER K.M.O.KEKERE-EKUN, J.S.C.

“The general principle of Section 2(a) of the Public Officers Protection Act is that where a statute provides for the institution of an action within a prescribed period, the action shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law. What this means in effect is that the Limitation Act or Law removes the right of action of a plaintiff, his right of enforcement and right of judicial relief leaving him with a bare and empty cause of action which he cannot enforce by judicial process. It is statute barred. See Egbe V. Adefarasin (1987) 1 NWLR (pt. 47) I, Military Administrator Ekiti State V. Aladeyelu (2007) 14 NWLR (pt. 1055) 619, Hassan V. Aliyu (2010) 17 NWLR (pt. 1223) 547, P. N. Udoh Trading Co. Ltd. V. Sunday Abere & Anor. (2001) 11 NWLR (pt. 723) 114, Alhaji Ado Ibrahim V. Alhaji Maigida U. Lawal & Ors (2015) LPELR – SC. 99/2009 delivered on 5th June, 2015.” PER J.I.OKORO, J.S.C.

And that “Where the action is instituted outside the time so allotted by the statute, we say that the action so instituted is statute -barred and cannot be maintained since it robs the court of the jurisdiction to entertain and determine same.” PER W.S.N. ONNOGHEN, J.S.C.

The Apex Court continued that ‘‘where any action is statute barred, a plaintiff who might otherwise have had 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 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.” PER J. I. OKORO, J.S.C

And the Supreme Court went on to give the rationale for Statutes of Limitation ‘‘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) l NWLR (pt.126) 345.” PER J. I. OKORO, J.S.C

‘‘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 that date with the date on which the writ of summons was filed. This in my view can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred. See Egbe V. Adefarasin & Anor (supra).’’ PER J. I. OKORO, J.S.C.

In this suit the statutes in question are Section 7(1)(a) of the Limitation Act cap 522 the Laws of the Federation of Nigeria 1990 and section 2(a) of the Public Officers Protection Act 2004.

Section 7(1)(a) of the Limitation Act Cap 522 the laws of the Federation of Nigeria 1990, provides that

“No action founded on contract, tort or any other action not specifically provided for in Part 1 and 2 of this law shall be brought after the expiration of six years from the date on which the cause of action accrued.”

While Section 2(a) of the Public Officers Protection Act 2004, 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.

The issue being whether the Defendants are not entitled to the protection of this act.

To whom does the POPA apply or is the Public Officer Protection act applicable to this suit.

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…

Section 318(1) of the CFRN 1999 defines “Public service of the Federation to mean service in any capacity in respect of the Government of the Federation and includes service as (c) any member or staff of any commission or authority established for the Federation by this constitution or by an Act of the National Assembly.”

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 not only refers to natural persons sued in their personal names but they extent 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.

From the foregoing I find that the defendants are entitled to the protection afforded by the Public Officers Protection Law.

A perusal of the Court file indicates that the Claimant commenced this action on the 12^th February, 2016, from the complaint and statement of fact being the equivalent of the writ of summons and the statement of claim in this court, I find that the wrong which gave the plaintiff a cause of action was the non-payment to the Claimant of his pension which was due to paid to him upon retirement. I find that the wrong giving rise to the Claimants cause of action was occasioned when the claimant by his pleading retired i.e. the wrong was committed on the 31st of July, 1984. The position of the law is that the cause of action claims for periodic payment inure when the entitlement becomes due and is not paid. Learned author Ikechukwu D. Uko Esq. in his book Preliminary Objections to Jurisdiction ©2013 2^nd Edition Published by Law Digest Publishing Co. Lagos at page 586 stated “Where a claim is for periodic payments such as arrears of salary, such a claim presupposes entitlement to such salary and denial of payment when and as it fell due. I find that the Claimant by his own pleadings, and its pertinent to reiterate at this time, this Court is limited and bound to consider the Claimants pleadings only for the determination of the applicability of limitation laws, would have been entitled to earn a pension from the date the claims to have retired that is 31^st July 1984. The Claimant’s contention of ill health and writing of letters have no effect as the Courts have long established as was stated in EBOIGBE V. N.N.P.C. (1994) 5 NWLR (PT. 347) 649 AT 658, PARA. F “A statute of limitation begins to run from the moment the cause of action arose. It is immaterial that a party was absent from the jurisdiction or that there was no Court within the jurisdiction to entertain the claim. Similarly, illiteracy will also not avail the plaintiff because ignorance of the law is no excuse and in computing time when the state of limitation begins to run, the day the cause of action arose is as a rule excluded and the day of filing the action is included. Solomon V. African Steamship Co. 9 NLR 99 referred to.] (p.643, para. A) and that with regard to the letters; that correspondences are of no import in the run of time for Limitation Acts. See SPDCN LTD Vs. EJEBU [2011] 17 NWLR (Pt. 1276) 324 at 342 With regard to correspondence it has been long established that time runs continually irrespective of intervening acts on the part of the parties. Furthermore “no admission, correspondence or negotiation can revive a statue bared case”. MV “ARABELLA Vs, NAIC [2008]5-6SC(Pt.11) 189. EBIOGE VNNPC [1994] 5NWLR (Pt. 347) 649. In UKWUOM V. FEDERAL MINISTRY OF SPORTS & SOCIAL DEVELOPMENT & ORS. (2007) 7 N.L.L.R. (PT. 18) 275 CA, where it was held 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”.

Also, the Claimant’s argument that his letters were not being responded to and the defendants lack of response necessitated his coming to court is equally untenable as the letters he wrote do not constitute the wrong for which he is seeking redress but are incidences of actions he took in furtherance of his injury, and such letter cannot constitute a cause of action in this suit, see HON. RUNYI KANU (JP) & ORS. v. ATTORNEY-GENERAL & COMMISSIONER FOR JSUTICE, CROSS RIVER STATE & ORS. (2013) 32 NLLR (PT. 91) 63 NIC. Thus, his cause of action arose on the 31^st July 1984.

By simple mathematical calculation, this suit was instituted 12^th February, 2016 – 31^st July 1984 Thirty – one (31) years, Six (6) months and Thirteen (13)days after the cause of action arose.

The limitation law 1990 gives a 6 year moratorium while the Public Officers Protection Act gives a three month window to bring an action. I find that the Claimant’s case is caught up by both Acts.

Having found the matter is caught up by the Limitation Act, the next step is to determine whether the matter falls within the ambit of the exceptions to the law. The claimant had argued that the operable statute governing the payment of his (the claimant’s) pension is none other than the Armed Forces Pensions Act CAP A23 Laws of the Federation, 2004”. And that that “statute robs all others of power to govern matters relating to payment of pension of officers of the Armed Forces. I am aware of certain enactments that specifically exclude in their implementation the application of the limitation laws such as enactment made by the Rivers State House of Assembly post 1999. And these enactments in their body state that in the operation of this enactment the limitation law, and it is always specifically names and cited, shall not be applied. Throughout the length and breadth of the Armed Forces Pensions Act CAP A23 Laws of the Federation, 2004, I found no such provision ousting the application of Limitation Laws. The Limitation Law is a protection to which a Defendant is entitled as long as certain prerequisites are met. I am also aware that by NEPA Vs. ADEYEMI [2007] 3 NWLR (Pt. 1021) 31, whether an employee is eligible for pension and gratuity can be decided only by reference to the conditions of service. ADEMULEGUN ADEREMI Vs. WEMA BANK PLC Suit No. NIC/LA/10/2011, Delivered on July 16, 2014 but the fact that the Armed Forces Pensions Act CAP A23 Laws of the Federation, 2004 provides for and regulates the payment of pensions to the Claimant and other armed forces personnel only means that in respect of these cadre no other pension act would be applicable without more. The Limitation Act and Public Officers Protection Acts are not Pension Acts these are threshold statues affecting the jurisdiction and the right to all claims. I find that this particular argument of the Claimant holds no water and is hereby dismissed.

The Claimant also argued that this suit constituted a continuous injury. In INDEPENDENT NATIONAL ELECTORAL COMMISSION V OGBADIBO LOCAL GOVERNMENT & ORS Supra it was held that “The continuance of the damage or injury constitutes an exception to the general rule. It was held in: Obiefuna Vs Okoye (1961) All NLR 357 @ 360 that: “Continuance of injury or damage means continuance of the legal injury and not merely continuance of the injurious effects of a legal injury. “See also: Olaosebikan Vs Williams (1996) 5 NWLR (Pt.449) 437 @ 456 — 457 D — H.” PER K.M.O.KEKERE-EKUN, J.S.C

And in the case of BELLO & ORS. v. NIGERIA CUSTOMS SERVICE BOARD (2015) 53 NLLR (PT. 179) 343 NIC @ 351this court held that “the definition of the phrase “continuance of the injury” by case law authorities means continuance of the “act which caused the injury” and not the injury itself. Okafor v. A.G, Anambra State (2001) FWLR (PT. 58) 1127 @ 1146 D-G; CARREY v. BERMONDSEY METROPOLITAN BOUROUGH COUNCIL (1903) 675 P. 447; 20 TLR 2; AMAMIWE v. THE LOCAL SCHOOL BOARD (1971) 2 NMLR 57 @ 58; OBIEFUNA v. OKOYE (1961) ALL NLR 357 and for the exception of “continuance of damage or injury” to limitation of action rule to avail an employee, there must be periodicity of payment. For instance, where an allocation which comes periodically, say, monthly (like salary and allowances) is deprived an employee, there is continuing damage or injury for which the Public Officers Protection Act or Law will not apply. HON. RUNYI KANU (JP) & ORS. v. ATTORNEY-GENERAL & COMMISSIONER FOR JSUTICE, CROSS RIVER STATE & ORS. (2013) 32 NLLR (PT. 91) 63 NIC.

I am aware that this court in the past had held that pensions were a constitutionally guaranteed and thus could not be statute barred See NICN/ UMU/01/2013 MRS CATHERINE ADANNA IKOT Vs. GOVERNOR OF ABIA STATE & 2ORS delivered on 18^th March 2014; Also the Court of Appeal in LATEF BABATUNDE AJAO v THE PERMANENT SECRETARY, MINISTRY OF ECONOMIC PLANNING BUDGET CIVIL SERVICE PENSIONS OFFICE & ANOR. SUIT NO. CA/L/922/2010 delivered on 14^th June, 2016 held that Pension Claims cannot be Statute barred but in this case the pension or period payment had commenced and was abruptly stopped irrationally ceased or illegally aborted. In the instant case the Claimant had never been paid the pension to the question of periodical payment. In all these cases the underlining factor of reasonableness is considered, and in the instant case the delay in approaching the Court cannot be considered reasonable. Furthermore, more recent judgments of this court have held pension can be statute barred. In MR. DOSUNMU OLOTO Vs. POWER HOLDING COMPANY OF NIGERIA unreported Suit No. NIC/LA/214/2011 the Ruling of which was delivered on February 13, 2014, this Court rejected the argument that a claim for pension, gratuities and severance packages cannot be statute-barred. This means that the Claimant’s argument in terms of his claims for pension not being caught up by the Limitation Law cannot stand.

Having found that this matter is caught up by both the Limitation Law 1990 and Public Officers Protection Act LFN 2004, this case is therefore statute barred and this court consequently is robbed of jurisdiction to further entertain this suit.

Courts other than the Supreme Court are required to consider all issues raised before them. I shall accordingly, as advised in FEED & FOOD FARMS (NIGERIA) LTD V. NNPC [2009] LPELR-1274(SC); (2009) 12 NWLR (Pt. 1155) 387, proceed to consider the merit of the claimants’ case should it be that I was wrong in holding that the suit is statue barred.

Now the Claimant relying on Exhibit C___ the discharge certificate, is claiming an entitlement to a pension having served 15 years and 4 days with the 2^nd Defendant as well as damages for the non-payment of the said pension. The defendants contend that the said exhibit C__ was forged and that the Claimant was not entitled to pension having served for only 9 years and 269 days. Going on to present a situation that the Claimant was duly paid his gratuity in 1978 based on the 9 years 269 days as evidence of his work period.

In this joinder of issues two questions arise the Claimant rightly argues that forgery is required to be proved to the degree required for a criminal trial, in ATUANYA & ANOR v. ATUCHUKWU & ANOR (2013) LPELR-22566(CA) it was held “that forgery being a crime, an allegation of its commission must be proved beyond reasonable doubt” and in APC v. PDP & ORS (2015) LPELR-24587(SC) it was held that “Forgery is a criminal offence and when it is an issue in any proceeding it must be proved beyond reasonable doubt.” Per NGWUTA, J.S.C. (P. 57, paras. E-F). In it was held as follows; – ”Now, “forgery” is the act of fraudulently making a false document or altering a real one to be used as if genuine – see Black’s Law Dictionary, 9th Ed., and to make sense of the allegation that the 1st Respondent was not qualified to contest the election, we will have to look closely at the evidence before the Tribunal, and its reasoning and conclusions thereon.” Per AUGIE, J.C.A (P. 13, paras. C-E). what all that means is that it is where forgery is in issue that the need to prove beyond reasonable doubt arise and in making sense of an allegation the court is required to look at the evidence.

In the instant case the defendants have not only denied Exhibit C__ but stated the Claimant forged the exhibit, was not entitled to pension, thus pulling the rug from under the feet of the claim to pension and presented a document showing the preparation of the Claimants gratuity in 1978.

The Claimant has put up no evidence in rebuttal of the Defendants position notwithstanding that the Ruling of this Court allow the Claimant file a reply to a Statement of Defence.

The Defendants did not establish the actual forgery but provided underlining evidence from which the court is required to reject Exhibit C__ as forged due to non entitlement to the claim.

The Claimant in this case failed to support this document by way of testimony or argument to support the fact that he was indeed entitled to a pension. Having denied the exhibit C__ the court is now faced with a question of weight and there is no underlining or supporting pleadings or evidence to negate the Defendants position. The Claimant did not even plead the nature of his work and the various posting he served during these 15 years and 4 days, he has presented no evidence of promotions or rising through the ranks or serving in various divisions neither has he presented the court with any oral testimony of a colleague or commanding officer to substantiate the claim of his having worked for the number of years he claims.

While I agree that the defendants have not proved that Exhibit C__ is forged. There is nothing before the court to suggest that the said exhibit was in fact not forged. Considering the gamut of evidence both oral and written I find that I am unable to rely on the said exhibit nor reject is as a forgery, neither do I have any other evidence in support of the Claimants claim. The Claimant case cannot rest of the said exhibit, the document having been challenged the Claimant requires to present this court either the letters authenticating the said Exhibit in this case. As he pleaded he lost the original, his letter seeking the re issue and the letter from the Defendants forwarding the said exhibit as well as other evidence as depicted above, this I find, would have satisfied the court that the Claimant was indeed entitled to a pension.

As it is the Claimant has not proved to this court the basis of his claim. The reliefs of Claimant’s, I find have not been substantiated and therefore fail.

The position of the law is that where a party fails to prove the fundamental elements of his claim the proper order to be made is one of dismissal see MR. MUHAMMED AMINU ADEMOLA & ORS v. SEVEN-UP BOTTLING COMPANY PLC (2003) LPELR-7272(CA.