IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE UYO JUDICIAL DIVISION
HOLDEN AT UYO
BEFORE HIS LORDSHIP: HON. JUSTICE M. N. ESOWE
DATE: 30TH JUNE, 2017
SUIT NO:NICN/UY/12/2016
BETWEEN
UDOMA E.U EKONG
CLAIMANT
AND
CENTRAL BANK OF NIGERIA
DEFENDANT
REPRESENTATIONS
- SAMUEL INYANG, Esq for the Claimant
- D. O URAUAKPAN, Esq for the Defendant
JUDGMENT
INTRODUCTION
This suit was instituted by the Claimant vide a General Form of Complaint dated 28th June, 2016 and filed same day.
The reliefs sought by the Claimant are as follows:
- A DECLARATION that the Defendant has no constitutional adjudicatory power to entertain, adjudicate and terminate the Claimant’s appointment on alleged financial misconduct and fraud which is a criminal offence without proper trial and adjudication by a criminal tribunal/court of competent jurisdiction
- A DECLARATION that the purported termination of the Claimant’s appointment in a letter dated June 24, 2014 Ref. No: HRD/EPR/SEC/DSA/TMN/09/60 by the Defendant is null and void of no effect whatsoever and it is set aside.
- A DECLARATION that the Claimant’s employment is still valid and subsisting and as such, the Claimant ought to be reinstated into his position and office.
- AN ORDER reinstating the Claimant to his office and to all his rights and privileges attached thereto, including but not limited to promotions, payment of his salaries, benefits and all other entitlements due and accruable to him since June 24, 2014 till the date of his retirement and judgment in this suit
In the alternative to Relief d, that is, in the event that reinstatement is not possible,
- AN ORDER granting to the Claimant his salaries from 24th June, 2014 till the date of his retirement which would have been in the year November 22, 2015 upon which he would have attained sixty years of age.
- AN ORDER granting interest in on all sums adjudged by this Honourable Court as payable to the Claimant whether as main claim or as the claim in the alternative at the prevailing Central Bank rate
- N30,000,000.00 (Thirty Million Naira) only general and aggravated damages for the Defendant’s malicious termination of Claimant’s appointment and financial embarrassment suffered by the Claimant.
- AN ORDER for the payment of productivity allowance for the year 2013 and 2014 to the Claimant.
SUMMARY OF FACTS
The Claimant, whose employment was terminated in June, 2014, was employed as a Clerk in July 1982 and rose to the post of Deputy Manager. The circumstances which led to the termination of his appointment were set off by a petition written by a lawyer in the law firm of Ogheneovo Otemu Chambers on a case of financial misconduct and fraud against Claimant. Claimant is hereby desirous of challenging the termination of his appointment.
On their part, whereas Defendant admitted that Claimant was in their employment until the termination of his appointment, Defendant stated that the termination of Claimant’s employment arose from a petition on financial misconduct on the part of the Claimant to which he was found culpable. It is the case of the Defendant that the termination of the appointment of the Claimant was done in line with laid down rules and procedure.
COMMENCEMENT OF HEARING
Hearing commenced on 25th January, 2017 whereby the Claimant opened their case and Claimant testified for himself as PW1, adopted his statement on oath and tendered their exhibits. Thereafter, Claimant closed their case.
On their part, Defendant opened their defence on 23rd February, 2017 by calling her sole witness Tolulope A. Showole through whom they adopted their written statement on oaths and tendered their exhibits. Thereafter, Defendant closed their case.
At the close of their case, Defendant did not file their final written address within time thereby prompting the Claimant to file before Defendant.
CLAIMANT’S FINAL WRITTEN ADDRESS
In Claimant’s final written address dated 29th March, 2017 and filed same day, Learned Counsel on behalf of Claimant formulated four (4) issues for determination, that is:
- Whether or not a petition written without a date (undated petition) alleging financial misconduct and fraud against the Claimant attached and forwarded by the Defendant to the Claimant through her memo Reference No. HRD/EPR/DSA/SEC/08/103 dated January, 27, 2014 with caption RE: A CASE OF FINANCIAL MISCONDUCT AND FRAUD WRITTEN BY MESSRS OGHENEOVO OTENU CHAMBER IS AN INVALID DOCUMENT (Exhibits B1, B2)
- Whether or not the Defendant as a party in this case has any power to entertain, consider, adjudicate and decided on an undated petition titled: Financial Misconduct and Fraud against the Claimant without referring the petition to the Investigative Agency of the police or EFFC and the Court or criminal Tribunal with competent criminal jurisdiction for proper trial and adjudication in the alleged petition for financial misconduct and fraud which is criminal offence.
- Whether or not Human Resources policies and procedure, manual (HRPPM) Exhibit H and The Report of the Central Disciplinary Committee (CDC) Exhibit I are documentary hearsay and therefore inadmissible as both documents (Exhibits) were not written, made or produced by the witness in his own hand and was not signed or initiated by the witness or otherwise recognized by him in writing as one for the accuracy of which he is responsible.
- Whether or not the Claimant has proved his case to entitle him to the reliefs claimed as the Defendant is liable to the Defendant.
ARGUMENT
ON ISSUE 1
Whether or not a petition written without a date (undated petition) alleging financial misconduct and fraud against the Claimant attached and forwarded by the Defendant to the Claimant through her memo Reference No. HRD/EPR/DSA/SEC/08/103 dated January, 27, 2014 with caption RE: A CASE OF FINANCIAL MISCONDUCT AND FRAUD WRITTEN BY MESSRS OGHENEOVO OTENU CHAMBER IS AN INVALID DOCUMENT (Exhibits B1, B2)
Learned Counsel submits that the petition against the Claimant which is undated document is an invalid document and the Defendant ought not to have relied on it and this Honourable Court should not attach any probative value to same. He refers Court to Omega Bank (Nig) Plc V. OBC Ltd (2005) 8NWLR (Pt.928) 547 @ 581 Paras C – D, Per Tobi JSC
ON ISSUE 2
Whether or not the Defendant as a party in this case has any power to entertain, consider, adjudicate and decided on an undated petition titled: Financial Misconduct and Fraud against the Claimant without referring the petition to the Investigative Agency of the police or EFFC and the Court or criminal Tribunal with competent criminal jurisdiction for proper trial and adjudication in the alleged petition for financial misconduct and fraud which is criminal offence.
Learned Counsel submits that the allegation of financial misconduct and fraud against the Claimant are criminal offences to which the Defendant has no constitutional powers to try. Moreso, the Defendant is part of the case as a party joined and she can therefore not sit and decide a case she was involved in. He relied on Mr Yesufu Amuda Garba & Ors V. University of Maiduguri (1985) SC 24, (1986) 1NWLR , (1986) ANLR
It is the submission of Learned Counsel that members of the panel set up by the Defendant to try the Claimant are all staff of the Defendant, the Defendant’s panel was also a judge. Therefore, there is real likelihood of bias against the Claimant.
He therefore urged this Honourable Court to set aside such judgment and the illegal trial as null and void.
ON ISSUE 3
Whether or not Human Resources policies and procedure, manual (HRPPM) Exhibit H and The Report of the Central Disciplinary Committee (CDC) Exhibit I are documentary hearsay and therefore inadmissible as both documents (Exhibits) were not written, made or produced by the witness in his own hand and was not signed or initiated by the witness or otherwise recognized by him in writing as one for the accuracy of which he is responsible.
Learned Counsel submits that Exhibit H – Human Resources Policies and Procedures Manual (HRPPM), Exhibit I – a 35-page Central disciplinary Committee (CDC) Report tendered by one Mr Tolulope Showole are all documentary hearsay being that they were tendered by a person who was not a member of the Central Disciplinary Committee, did not write or sign the report, did not produce any of the exhibits in his own hand, did not initial or recognize the writing in the exhibits as one for the accuracy of which he is responsible. Therefore such are inadmissible. He refers Court to Ojo V. Dr Gharoro & Ors (2006) 10NWLR 173 where the Supreme Court held that where a document by its content conveys hearsay evidence, any oral evidence based on that document will definitely amount to hearsay.
He therefore urged the Court to ignore and discountenance Exhibits H and I without attaching any weight to same.
ON ISSUE 4
Whether or not the Claimant has proved his case to entitle him to the reliefs claimed as the Defendant is liable to the Defendant.
Learned Counsel submits that from the records of proceeding before this Honourable Court, Exhibits before Court, the Claimant has proved his case on the balance of probabilities.
It is the submission of Learned Counsel that the evidence of the Claimant is weightier than that of the defendant.
He therefore urged the Court to grant the reliefs of the Claimant as contained in the pleadings.
DEFENDANT’S FINAL WRITTEN ADDRESS.
On receipt of Claimant’s final written address, Learned Counsel on behalf of Defendant filed their final written address dated 27th March, 2017 and filed 3rd April, 2017. In Defendant’s final written address, Learned Counsel formulates three (3) issues for determination, that is:
- Whether this action is not statute barred and the jurisdiction of the Court to hear and determine this matter vitiated on this ground.
- Whether the termination of the appointment of the Claimant by the Defendant is null, void and of no effect to warrant it being set aside
- Whether the Claimant’s action has merit.
ARGUMENT
ON ISSUE 1
Whether this action is not statute barred and the jurisdiction of the Court to hear and determine this matter vitiated on this ground.
Learned Counsel submits that by virtue of Section 2(a) of the Public Officers Protection Act CAP P.14 Laws of the Federal Republic of Nigeria 2004, any action against a public officer shall not lie or be instituted unless it is commenced three months next after the act. That being that Defendant is a public officer, it is affected by this provision. That in Ibrahim V. Judicial Service Commission (1998) 12 SCNJ P.255 @ 272, the Supreme Court held:
Where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by statute is totally barred as the right of the injured person to commence the action would have been extinguished by such law.
It is the submission of Learned Counsel that from the face of Exhibit E, the cause of action in this suit arose on 24th June, 2014 when the appointment of the Claimant was terminated whereas this action was instituted on 28th June, 2016, which is more than two years therefore more than the three months prescribed by law.
He therefore urged this Honourable Court to dismiss the suit for being statute barred.
ON ISSUE 2
Whether the termination of the appointment of the Claimant by the Defendant is null, void and of no effect to warrant it being set aside
Learned Counsel submits that the law is trite that the burden of proving a case rests with he who alleges. That Claimant has not proved in any way that the termination of his appointment is null, void and of no effect. That rather, Defendant adhered to the laid down rules and took all the necessary steps leading to the termination of the appointment of the Claimant. He refers the Court to Exhibits A, B, B1, C, D, E, H and I tendered before Court.
He therefore urged the Court to resolve this issue in their favour.
ON ISSUE 3
Whether the Claimant’s action has merit.
Learned Counsel, while adopting their argument in issue two above, and relying on the facts in this case, submits that the suit of the Claimant before this Honourable Court is void of merit.
He therefore urged the Court to dismiss this action with heavy cost against the Claimant for being statute barred, baseless and lacking in merit.
DEFENDANT’S REPLY ON POINT OF LAW
Besides being the last to file final written address, Defendant filed a reply on point of law dated 9th May, 2017 and filed 10th May, 2017.
At this point, this Court will like to state that the Defendant’s manner of filing a reply on point of law when they were the last to file their final written address is unkown to law. The Defendant lost that right to reply on point of law when they failed to file final written address before the Claimant. Consequently, Defendant’s Reply on point of law is of no moment and same is hereby struck out.
COURT
Having gone through the Claim of the Claimant, Defendant’s defence, evidence adduced by both sides as well as the arguments by Counsel to the Claimant and Counsel to the Defendant, this Court, while adopting all the issues raised by both Counsel, has distilled the following issues for determination, to wit:
- Whether the Defendant has the power to determine the employment of the Claimant, and the extent of such power
- Whether this suit is properly brought before this Honourable Court and whether Court has jurisdiction to entertain same.
- Whether the Claimant has proved his case to the satisfaction of the Court to be entitled to the reliefs sought.
This Court wishes to state that having adopted all the issues raised by both Counsel, same will be resolved when necessary in the body of the judgment
That said, this Court will proceed to resolve the issues distilled above.
ISSUE 1
Whether the Defendant has the power to determine the employment of the Claimant, and the extent of such power
In employment matters, there are three basic categories of employment: (i) employment with statutory flavour (ii) contract employment (iii) master –servant employment.
Under employment with statutory flavour, the manner and way of determining the employment is not limited to what is stated in the employment letter but extends to the manner and way provided for by law or statute governing the employment. The import is that the Court must pierce the veil of the employment letter and look beyond it to the statute governing the employment.
On the other hand, contract employment, by nature, is a temporary and non-pensionable appointment for a specific period as distinct from appointment on pensionable terms. See Mobil producing (Nig) Unltd v. Asuah (2001) 16NWLR (pt. 7407). Contract employment is usually embodied in a formal document which provides for the manner and way such employment is determined.
Lastly, master –servant employment is an employment relation which can be determined at any time at the pleasure of the employer. This is derived from the saying – He who hires, has the power to fire. Master-servant relation is prevalent in the private sector. In Master –Servant employment whether or not an employee’s appointment is terminated with reason, the Court does not compel reinstatement for you cannot force an employee on an unwilling employer. Hence, the remedy available to the employee is damages where the court finds that the termination of his employment was unlawful. See Imoloame V. WAEC (1992)9NWLR (pt. 265) 303.
That said, it is not in dispute in the case herein that the employment of the Claimant is that which enjoys statutory flavour. What is in dispute, however, is that the manner and way the employment of the Claimant was terminated is ultra vires the power of the Defendant.
As earlier said, in employment which enjoys statutory flavour the Court is bound not only to look at the employment letter but the law or statute governing the employment. There is no doubt that the Defendant has the power to determine the employment of the Claimant, but if the Court finds that the compulsory retirement of the Claimant was wrongful and unlawful, it can order the reinstatement of the Claimant. The Object of employment with statutory flavour is to protect the employee who is in a vulnerable position, in most cases, from the excesses of the employer. The point here is that even though it lies in the power of the Defendant to hire, it does not lie in its power to fire at will. If Defendant, a public institution, is allowed to fire without recourse to laid down procedure, it will not only defeat the very essence of the rule of law but will result to lawlessness. What a Court looks at in determining termination or dismissal in employment that enjoys statutory flavour is whether the laid down procedures/rules were adhered to and/or whether the Defendant has the vires to determine the allegation against the Claimant. Therefore, in the event that the Court finds that laid down procedures/rules were not followed in determining the employment of the Claimant and/or the Defendant lacks the power to try the Claimant on the allegations against him, the Court can nullify any decision emanating from same and order reinstatement.
ISSUE 2
Whether this suit is properly brought before this Honourable Court and whether Court has jurisdiction to entertain same.
The mind of the Court is that issue 2 cannot be properly resolved without addressing the issue of statute of limitation raised by the Defendant.
By virtue of Section 2(a) of the Public Officer Protection Act, any action against a public officer ought to be brought within three (3) months of the time the cause of action arose. Any action instituted after three months is statutorily barred and robs the Court of Jurisdiction to entertain same. However, the Courts, in the course of time, have created certain exceptions to mitigate the harshness of the limitation Act, example, where the injury is a continuous one, the public officer acted malafide etc. See University of Lagos V. Adeniran (2000) 1NWLR (Pt.1031) PP498; Adejumo V. Olawaiye (2014) 31WRN P.1.
The object of statute of limitation is to protect public officer from spurious litigation which may distract them in the course of their public duty. This is why the law provides for a limitation period to which you can bring an action against them.
That said, I do not think that the exceptions created by the Courts in Section 2 (a) POPA inures a party for ever nor has the exceptions repealed Section 2 (a) Public Officers Protection Act in its entirety.
I have carefully gone through the facts and evidence adduced in this suit, I do not find it in the realm of the exceptions to the statute of limitation.
The termination of the appointment of the Claimant was on 24th June, 2014 and the action herein was filed on 28th June, 2016 (two years after the cause of action arose), a period outside the three months provided for in Section 2(a) Public officers Protection Act. Claimant having failed to file this action within three months of the time the cause of action arose, has been statute barred from instituting this action. Consequently, this Court cannot be seised with jurisdiction to entertain same. See A.G. Federation v Abacha (2010) 17NWLR pt. 1 @ 24 paragraphs D-E; Sani v. President, Federal Republic of Nigeria (2010) 9NWLR pt. 1198 page 153@page170para C-D,
Claimant slept over his right and failed to activate the machinery of justice within time and thus waived his right to so do having been caught by the statute of limitation. See Olagunju v. PHCN Plc (2011) 10NWLR pt. 1254 page 113@126 paras C-E. The failure of Claimant to file this action within time robs this Honourable Court of jurisdiction to entertain same. See Madukolum V. Nkemdillin (1962)2SCNR 341. It is in this regard that this Honourable Court wishes to state that the suit of the Claimant was dead on arrival and there is no need flogging a dead horse.
Having determined that the Court has no jurisdiction to entertain this suit ab initio same having been caught by statute of limitation, addressing the 3rd issue raised by the Court would amount to mere academic exercise which this Court feels no need to embark on.
Consequently, the suit of the Claimant fails and same is hereby dismissed.
I make no order to cost. Parties should bear their respective costs.
Judgment is entered accordingly.
……………………………….
HON. JUSTICE M.N ESOWE
