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USIFOR Simeon & 44 ORS -V- National Security and Civil Defence

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

ON WEDNESDAY 11TH DAY OF APRIL 2018

BEFORE HIS LORDSHIP: HON. JUSTICE S. OLUYINKA ADENIYI

 

SUIT NO: NICN/ABJ/244/2013

BETWEEN:

  1. USIFOH SIMEON
  2. MUKORO JOSHUA
  3. MARIAN NWEKE
  4. UKUOMA KENNETH
  5. EMEMAMEH A. ANTHONY
  6. OMOSOR M. OJI-JGBELI
  7. ANTHONY N. AGBA
  8. SOLOMON EJUGHREMRE
  9. UZIE l. EZEKIEL   }CLAIMANTS/RESPONDENTS
  10. EMEKA A. OSITA
  11. OGHOMIN O. LAWRENCE
  12. IGBIRIKI KINGLEY
  13. IBUDE GLADES
  14. NWEKE C. SUNDAY
  15. MOTOLU JOSEPHAT
  16. USIAYO E. GIDEON
  17. ISA FAKAN
  18. JULIUS NWANKWO
  19. OSSAI E. AUGUSTUS
  20. UNUAFE CLEMENT U.
  21. PAULINUS OBI
  22. EUGENE AHAMEFULA H.
  23. DOMINIC E. ONWE
  24. EMMANUEL NWEKE
  25. PATRICK ODUBU
  26. GODDAY ONYEISUE
  27. OGHENEKARO EMOMAGHO
  28. OBRUTHE OGHOGHO
  29. BENEDICT EZE
  30. AREFA JOHN
  31. EJAKPOFO E. EMMANUEL
  32. OSIKOTE BAYO
  33. SOLOMON OKUTU
  34. MERCY ONYEMA
  35. RUTH ODAGWE D.
  36. CYRIL ONI-JORAH
  37. MENA C. GEOFFREY
  38. EDWARD OWHOJEHRI
  39. JAMES EMOVWERA
  40. EBOTA JAMES
  41. EVU SAMSON
  42. OKORODUDU MATTHEW
  43. JONNY OTUYA
  44. CHIKERE MADU

AND

  1. NIGERIA SECURITY AND CIVIL DEFENCE CORPS DEFENDANT
  2. HONOURABLE MINISTER OF INTERNAL AFFAIRS DEFENDANT /APPLICANT

R U L I N G / J U D G E M E N T

This action was commenced by Complaint dated 12th June, 2013 and filed on 25th September, 2013, wherein the Claimants/Respondents claimed against the Defendants the following:

  1. A declaration that in view of Section 26(6) of the Nigeria Security and Civil Defence Corps Act, 2003 the Claimants’ ranks are preserved at the inception and commencement of the Nigeria Security and Civil Defence Corps 2003, Act.
  2. A declaration that the Nigeria Security and Civil Defence Corps Act, 2003 does not contemplate the demotion of the Claimants from their pre-existing ranks upon the commencement of the said Act.
  3. A declaration that the Reviewed, Re- absorption and offer of Sanitized Appointment exercise, into the Nigeria Security and Civil Defence Corps embarked upon by the Director, Civil Defence, Immigration & Prisons Service Board, Federal Ministry of Internal Affairs which purportedly demoted the Claimants’ from their pre-existing ranks prior to the commencement of the aforementioned Act is null and void because it contravenes the provision of Section 26 (6) of the Nigeria Security and Civil Defence Corps Act, 2003.
  4. An Order that the Defendants re-adjust the Claimants’ status to their pre-existing ranks before commencement of the Nigeria Security and Civil Defence Corps Act, 2003, as preserved by Section 26 (6) of the Nigeria Security and Civil Defence Corps Act, 2003.
  5. A declaration that the Defendants’ pay to the Claimants (as a consequence of the adjustment) all such arrears of salary and other requisite emoluments as would be due to them as officers of their prior Grades.
  6.  A declaration that the Defendants make all such adjustments to the status of the Claimants as would consequentially arise from a just and proper treatment of the Claimants as officers of their prior grades reckoned from the dates of their last promotion and as preserved by Section 26 (6) of the 2003 Act.
  7.  An Order of this Honourable Court declaring null and void the documents being relied on in support of the Complaint marked Exhibits “Dl- D38”
  8.  An Order of this Honourable Court declaring null and void the documents being relied on in support of the Complaint marked Exhibits “F1 — F6”

The 2nd Defendant/Applicant filed the instant Notice of Preliminary objection dated 19th May, 2016 and filed on 6th June, 2016. It is brought pursuant to Section 2(a) of the Public Officers’ Protection Act, Cap P41, Laws of the Federation of Nigeria 2004 (POPA) by which it prayed for an Order of this Honourable Court dismissing this suit for want of jurisdiction.

The preliminary objection is premised upon the following ground:

“The Claimants’ action by virtue of Section 2(a) of the Public Officers (Protection) Act (POPA) is statute barred.”

The sole issue raised by the learned counsel for the 2nd Defendant in the accompanying written address is:

“Whether the Defendants in this case can avail themselves of the protection provided by Section 2(a) of the Public Officers (Protection) Act.”

The learned Claimants’ counsel, in reaction to the preliminary objection, filed a written address on the 17th day of June 2016.

I had proceeded to examine the preliminary objection and the legal arguments canvassed by the respective learned counsel in support and to oppose the same as the case may be.

The totality of the arguments canvassed by learned counsel for the Defendant/Applicant, Otuka J. Otuka Esq., can be succinctly summarized as follows:

  1. That this suit is statute barred in view of the provisions of Section 2(a) of the POPA as the suit was instituted on 25th September, 2013 more than three (3) months after the alleged cause of action arose.
  2. That the Claimants averred in their Statement of Facts that they were served with letters of proper placement and disengagement in September 2011.
  3. That the cause of action arose in September 2011, when the Claimants received their letters from the CDFIPB through the 1st Defendant.
  4. That the cause of action in this suit is time barred and incompetent thereby robbing the Court of the requisite jurisdiction to entertain same.
  5. That where a plea of limitation under the POPA is raised, there is no basis for prying into the conduct of the Defendants which gave rise to the action.

In support of his submission, the learned counsel for the 2nd Defendant referred to the case of YARE V. N. S. W. I. C.  (2013) 12 SCM 233 AT 244-245 where the Supreme Court held that a public servant must within three (3) months provided by the POPA institute an action against the termination of his appointment. In further support of his propositions, learned counsel cited the provision of Section 2(a) of the POPA (supra); and a plethora of judicial authorities all of which I had carefully considered. They include Mr. M.A.D. Ukiri V Federal Civil Service Commission & Anor (2011) All FWLR Pt 577 Pg 783 at 786; Forestry Research Institute of Nigeria V Mr. I. A. Enaifoghe Gold (2007) All FWLR Pt 380 Pg 1444 at 1446; Central Bank of Nigeria V Jacob Oladele Amao (2011) All FWLR Pt 558 Pg 806 at 812; Yusuf V Egbe (1987) 2 NWLR Pt 56 Pg 343; Egbe V Yusuf (1992) 6 NWLR Pt 245 Pg 1; Ekeogu V Aliri (1991) 3NWLR Pt 179 Pg 258; Samson Owie V Solomon Ighiwi(2005) 5NWLR Pt 917 Pg 184.

The learned Claimants/Respondents’ counsel, Ededem C. Ani Esq., arguments in turn is centrally to the effect that the Defendants acted ultra-vires the authority under the Nigeria Security and Civil Defence Corps Act 2003 (NSCDC) Act by lowering the ranks respectively held by the Claimants before the commencement of the NSCDC Act in violation of Section 26 (5) and (6) thereof. Learned counsel for the Claimants further argued that the action of the Defendants was a continuous injury as it deprived the Claimants their statutorily guaranteed ranks and appropriate salaries.

It is the submission of learned counsel for the Claimants’ that the application of the POPA admits some exceptions which include a situation when there is continuous injury. He argued that the 2nd Defendant was reticent in his interpretation of the said Section 2 (a) of the Act and restricted himself to authorities dealing with the first limb of the section in his bid to misdirect the Court. Citing the Supreme Court case of Owners of MV “Arabella” V Nigeria Agric Insurance Corp (2008) 4-5 S.C PT II 189 Pg 211, Claimants’ counsel further submitted that the words used in Section 2 (a) of the Act are clear and unambiguous and urged the Court to give the words used in therein its ordinary meaning without resorting to any internal or external aid.

Learned counsel further submitted that the Apex Court had taken a liberal approach in the case of C.B.N V Amao & 2 ors 2010 5-7 SC (Pt I) Pg 25 -26, where it held that the provision of Section 2 (a) of the Act does not apply in cases where there is continuance of injury or damage.

The learned counsel further contended that when the issue of continuance of damage has been raised, the Claimants should be given the opportunity to call witnesses and ventilate his grievances rather than shut the Claimants out. In support of this proposition, learned counsel cited the case of A.G Rivers V A.G Bayelsa (2013) 3 NWLR Pt 1340 Pg 123 at 148 where GaladinmaJSC (as he then was) held that:

“Where such allegation of continuing damage or injury has been raised, in such a situation there is need for the trial court to take evidence before determining the point”.

He concluded by submitting that the suit is not statute barred and urged the Court to dismiss the 2nd Defendant’s preliminary objection.

In spite of the volume of arguments made by learned counsel on both sides on this issue, the salient question that needs for determination is the issue both parties had adopted, that is:

“Whether the Public Officers Protection Act can, avail the Defendants in the circumstance of this case.”

Section 2 (a) of the said Act which is in the front burner states:-

“where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance of 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 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.”

Section 20 (1) & 2 (a)& (b) NIGERIAN SECURITY AND CIVIL DEFENCE CORPS ACT, 2003 is impari materia with the provision of S. 2(a)of the POPA. It provides:

“20 (1) Subject to the provisions of this Act, the provisions of the Public Officers Protection Act shall apply in relation to any suit instituted against any officer or employee of the Corps.

(2) Notwithstanding anything contained in any other enactment, no suit against any member of the Board or the Commandant-General or any other officer or employee of the Corps for any act done in pursuance or execution of this Act or any other enactment or law, or of any public duty or authority or in respect of any alleged neglect or default in the execution of this Act or any other enactment or law, duty or authority, shall lie or be instituted in any court unless it is commenced-

 (a) within three months after the act, neglect or default complained of; or

 (b) in the case of a continuation of damage or injury, within six months after the ceasing thereof.”

Flowing from the sections of the law reproduced above is the fact that an action commenced after the expiration of the period stipulated is not maintainable. Consequently, where an action is statute-barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the POPA for instituting such as action has elapsed except in the case of continuance of the damage or injury in which the Claimant must institute the action within 3 months after the cessation of the damage or injury. This is the position of the Appellate Court in CHIEF OF ARMY STAFF & ANOR V. ISAH (2017) LPELR-41979 where OBASEKI-ADEJUMO, J.C.A held:

“The general principle of law relating to limitation law cases is that any action instituted after the period stipulated by the statute is totally barred, so that the right of the plaintiff or injured person to commence action would have been extinguished by such law.”

 See also Ekeogu V Aliri (1991) 3 NWLR Pt 179 Pg 258;
Ibrahim V J.S.C Kaduna State (1998) 12 SC 20; Egbe V Alhaji (1990) 3 S.C (Pt.1) 63; Tajudeen V C.I.P.S.B (2010) 4 NWLR Pt 1184 325; University of Ilorin V Adeniran (2007) 6 NWLR (Pt. 1031) 498.

It is a common ground amongst parties that the Defendants are public officers. The Claimants described the 1st Defendant in Paragraph 2 of the Statement of Facts, as a statutory body created by Statute – the Nigeria Security and Civil Defence Corps Act 2003 (supra). Whilst the 2nd Defendant was described in Paragraph 3 of the Statement of Facts as the Minister  of Internal Affairs of the Federal Republic of Nigeria and is charged with the onerous responsibility of administering and supervising the 1st Defendant in accordance with statutory provisions enabling him in that behalf. These descriptions bring the Defendants within the category of “any person” referred to in Section 2 (a) of POPA and as such they are public officers. See Ibrahim V J.S.C, Kaduna State (supra).

Did the Claimants then file this suit against the Defendants within 3 months of the accrual of their cause of action as required in Section 2 (a) of the Act?

In order to answer this question, there is need to determine when the Claimants’ cause of action arose and when they filed the suit. It is stated in the written address filed alongside with the Notice of Preliminary Objection that the Claimants filed this suit on 25/09/2013. The Claimants did not offer any contrary date of institution of the action.

I have perused the processes filed and I observe that the Complaint of the Claimants in this action was filed on the date stated by the 2nd Defendant, which is 25th September 2013. The contention of the parties is with regards to when the Claimants’ cause of action arose. To the 2nd Defendant, the Claimants’ cause of action arose between 1st and 5th September, 2011which was the date stated on the 1st Defendant’s letters of proper placement (Exhibits E1–E33) and disengagement (Exhibits F1-F6). However, the learned Claimants’ counsel’s contention is that the Claimants’ claims for the re-adjustment of the Claimants’ status to their pre-existing ranks before the commencement of the NSCDC Act 2003 is a continuing injury and the injury has not ceased at the time the suit was filed. The learned Claimants’ counsel cited the authorities of CBN V. AMAO (supra) and A.G Rivers and A.G. Bayelsa (supra) to support his position.  In view of these different positions taken by the parties, it is necessary that the Claimants’ cause of action and the precise date it arose, or whether the cause of action is a continuing injury, be determined.

It is settled beyond citing of judicial authorities that limitation period with respect to an action is determined by reference to the Writ of Summons and the Statement of Claim (in this case the Complaint and Statement of Facts) and nothing more. This is to ascertain the date when the rights sought to be enforced by the aggrieved party accrued and this is done by comparing that date with the date on which the Complaint was filed. Where it is found that the date pleaded by the Claimant in his Complaint and Statement of Facts with respect to the time when the right to sue accrued is beyond the limitation period of three months under the POPA, the action is statute-barred and thus incompetent. See EGBE V ADEFARASIN (No.2) (1987) 1 NWLR Pt 47 1 SC; WOHEREM V EMERUWA (2004) 13 NWLR Pt 890 398 SC; J.S.F. Investment Ltd V Brawal Line Ltd (2011) All FWLR Pt 578Pg 876 at 902; J.K.K. Ltd V Governor, Lagos State (2014) 5 NWLR Pt 1399 151.

The facts of the Claimants’ case, as contained in the Statement of Facts are that they were enlisted by the 1st Defendant before the commencement of the NSCDC Act 2003. Due to their diligent service, the Claimants were promoted to various ranks between years 2000 and 2002. In 2003, the 1st Defendant became a statutory body by the NSCDC Act 2003. The Claimants received letters in 2005 titled, “Offer of Provisional Re-absorption and Appointment into the NSCDC”. By the said letters, the Claimants had purportedly been re-absorbed into the 1st Defendant at a rank and grade lower than they had previously held before the commencement of the Act. Thereafter, the Claimants received letters titled, “Letters of proper placement” purporting to place the Claimants in their ranks and grades which were still lower than the ranks and grades they had held previously. Furthermore, the 38th, 39th, 40th, 41st, 43rd and 44th Claimants received letters of disengagement from the 1st Defendant which was to take effect on the same day as the date of the letters of proper placement. Being aggrieved with the Defendants, the Claimants instructed their counsel to issue notice of intention to commence legal proceedings against the 1st Defendant dated 13th December, 2013. The Claimants were dissatisfied with the response of the 1st Defendant in its reply. It is upon these facts the Claimants sought the reliefs which I had earlier stated.

What then is a cause of action?

In P. N. Udoh Trading Company Limited V Abere (2001) 11 NWLR Pt 723 Page 114 at 129 it was stated as follows:-

“Cause of action had been defined by Courts to mean a combination of facts and circumstances giving rise to the right to file a claim in court for remedy. It includes all things which are necessary to give a right of action and every material fact which is material to be proved to entitle the plaintiff to succeed.” 

See also – Savanah Bank of Nigeria Limited V Pan Atlantic Shipping & Transport Agencies Ltd (1987) 1 NWLR Part 49; Ogbah V Bebde Divisional Union (2001) FWLR Pt.63 Pg 25 at 27.

Where there is in existence an action or omission which entitles one to sue another for redress in a court of law and there is in existence a person who can sue and another to be sued, there is in my opinion the existence of a cause of action and time begins to run where all the facts have occurred which are material for proof to entitle a plaintiff to the relief sought.

The facts which had occurred that are material to determine when the cause of action crystallized in the instant case can be gathered from Paragraphs 9 to 12 of the Statement of Facts hereunder re-produced as follows:

  1. That the Claimantswere shocked when in 2005 between the months of November and December, they received letters titled,“Offer of provisional re-absorption and appointment into the NSCDC”.Copies of the said letters are pleaded and marked ExhibitsD1-D44. (Underlining mine)
  2. That the shock arose from the import of the said letters which were to the effect that the Claimants had been purportedly re-absorbed into the 1stDefendantat a Rank and Grade lower than they had previously held before the commencement of the NSCDC Act.(Underlining mine)
  3. That between 1st and 5th September 2005, the Claimants also again received Letters of Proper Placement, purporting to place the aforementioned Claimants in their proper Ranks and Grades which were still lower than ranks and grades they had held previously, the said letters were to take effect on the 5th September 2005. Copies of the said Letters are pleaded and marked Exhibit El — E33
  4. That on the 1st of September 2005 the 38th, 39th, 40th, 41st, 43rdand 44thClaimants in addition to the aforementioned letters, also received letters of disengagement from the 1st Defendant which were to take effect on the same day as the aforementioned letters in paragraph 11 of this Statement. Copies of the said Letters are pleaded and marked Exhibit Fl — F6.

It is imperative to note that Exhibits E1- E33 and F1 – F6 were dated between 1st and 5th September 2011 and not between 1st and 5th September, 2005 as erroneously stated in Paragraphs 11 and 12 of the Statement of Facts.

The Claimants had knowledge of the fact in 2005 that they had been placed at ranks and grades lower than the ranks and grades which they were placed prior to the commencement of the NSCDC Act 2003 when they received their letters of re-absorption.

Paragraphs 2, 3 and 4 of the letter the offer of provisional re-absorption and appointment into NSCDC of 2005 (Exhibit D1 addressed to the 1st Claimant) states:

2.”If this offer is acceptable to you, you should immediately report to the NSCDC State Command of your own state of origin for necessary documentation and deployment, to this end, therefore, you are required to bring along with you all the originals of your credentials…”

3.”However, your appointment is subject to confirmation, if not done before anywhere in the country’s public service, after a probationary period of two (2) years with effect from the date you assume duty.”

4.”Also, the appointment is at the pleasure of the Federal Government of Nigeria and subject to the terms and conditions of service as obtainable in accordance with the provisions of the approved Federal Government Paramilitary Scheme of Service as appropriate”

It is presumed that the Claimants accepted the terms and conditions of this offer based on the facts that the Claimants subsequently received the letters of proper placement (Exhibit E1-E33) while some other Claimants received letters of disengagement (Exhibit F1-F6); these letters were dated between 1st and 5th September 2011, which was six (6) years after the letters of offer of provisional re-absorption and appointment.

The contents of Exhibits E1 dated 5th September, 2011 and addressed to the 1st Claimants reads:

“Sequel to the Verification Exercise conducted between 2008 -2010, for the Nigeria Security and Civil Defence Corps (NSCCDC) by the Board, I wish to inform you that Civil Defence Immigration and Prison Service Board has approved your upgrading to the rank of Assistant Superintendent of Corp II on CONPASS 8 notionally from 1/1/2008 and actually with effect from 5/9/2011.”

The placement was in line with the terms and conditions of the Claimants’ letters of offer for re-absorption as stated in Exhibits D1-D44.

Based on the facts gathered from the Complaint and the Statement of Facts, I am of the view that the cause of action dates back to 2005; the combination of facts and circumstances giving rise to the right to file the Claimants’ claims occurred when the Claimants received the letters of offer of provisional re-absorption and appointment into the NSCDC – Exhibits D1 –D44. It was the period the Claimants’ were demoted in their ranks and grades.

The Claimants are claiming for re-adjustment of their status to their pre-existing ranks before the commencement of NSCDC Act 2003. That is, the cause of action arose in 2005 when they accepted the offer of re-absorption and appointment of the Defendants but they failed to institute this action till 2013.

The learned Claimants’ counsel, citing the cases of CBN V. AMAO (supra) and A.G Rivers and A. G Bayelsa (supra) had argued extraneously that the injury suffered by the Claimants of lowering their ranks and grades(or demotion) by the Defendants is an injury of a continuing nature not caught up by the Public Officers’ Protection Act.

In the Black’s Law Dictionary 5th Ed, “continuous injury” is defined as “one recurring at intervals, so as to be of repeated occurrence; not necessarily an injury that never ceases.” Hence, it has been held that where the act complained of is a permanent damage, the issue of continuity does not arise as the concept of “permanent damage” does not admit of continuity as it is a once and for all act – Gulf Oil Co. (Nig.) Ltd V Oluba (2002) 12 NWLR (Pt. 780) 92.

Now the law is that, generally, where the injury complained of is a continuing one, time does not begin to run for the purpose of application of a limitation law until the cessation of the event leading to the cause of action – Abiodun V Attorney-General, Federation (2007) 15 NWLR Pt. 1057 359. Also, where the continuance of damage is such that gives rise to a fresh cause of action every time it occurs, limitation law will not apply to bar action on the fresh cause of action – The Shell Petroleum Development Company of Nigeria Ltd V Amadi (2010) 13 NWLR (Pt. 1210) 82.

First, let me reiterate the fact that the Claimants’ claims inter-alia is for payment of all such arrears of salaries and other requisite emoluments as would be due to them as officers of their prior grades. This is a claim is a claim for promotion. To be entitled to such claim, it has to be first determined whether they are entitled to the ranks and grades before considering the entitlements to the arrears.

This fact clearly takes the case out of the context of the CBN V. AMAO (supra) and A.G Rivers and A. G Bayelsa (supra) cases heavily relied on by the Claimants’ counsel. In CBN V. AMAO, the Respondents’ cause of action in that case was the default of the Appellant to pay the harmonized pension as agreed from month to month. The Appellant was paying monthly pensions to the Respondents less than what is provided in the white paper and circulars every month thereby leaving part of their entitled monthly pension unpaid. It was held that the cause of action in the case arises every month when the Appellant pays pension less the amount due to the Respondents than their full harmonized pensions which the Appellant had agreed to pay. The scenario or issue in the instant case is different from that in CBN V. AMAO.

Again, continuance of injury or damage contemplated in Section 2 (a) of the POPA has been interpreted to mean the continuance of the act complained of in the action. See Olaosebikan V Williams (1996) 5 NWLR Pt. 449 Pg 437.

I do not see any continuance of injury in the facts of the Claimants’ case. The conduct of the Defendants to re-absorb and appoint the Claimants occurred in 2005. The facts do not show that the Claimants did not accept the terms of their re-absorption and appointment not until in 2011 when they received the letters of proper placement. I cannot see how the conduct and action of the Defendants constitute continuing injury or damage contemplated in Section 2 (a) of the Public Officers’ Protection Act.

Furthermore, the Claimants averred in Paragraph 12 of the Statement of Facts that the 38th, 39th, 40th, 41st, 43rd and 44th Claimants in addition to the letters of proper placement also received letters of disengagement from the 1st Defendant which were to take effect in September 2011. The letters of disengagement are Exhibits F1-F6.

Exhibit F1 dated 5th September and addressed to Ohwojehri Edward (38th Claimant) states:

“Sequel to the Verification Exercise conducted between 2008 -2010, for the Nigeria Security and Civil Defence Corps (NSCCDC) by the Board, I wish to inform you that Civil Defence Immigration and Prison Service Board has approved your disengagement from service on the ground of over aged with effect from 5th September, 2011.”

This same letter was issued to the 40th, 41st and 43rd Claimants stating the same ground for disengagement. Whilst the ground for disengagement for the 39thand 44th is that of no certificate.

By the said exhibits, the Defendants have conveyed to these set of Claimants the fact that their employment with the 1st Defendant had ceased.

The cause of action of the Claimants in the instant case was founded on their demotion in their ranks and disengagement from office as conveyed in their letters in Exhibits D1 – D44, Exhibits E1 – E33 and Exhibits F1 –F6 respectively. The act of demotion and disengagement was done once and for all and there is nothing continuous about it. The action of the Defendants complained about by the Claimants was in the nature of a “permanent damage” and not a continuous one. The concept of continuous damage or injury is thus inapplicable in the circumstances.

There is no gain saying that the cause of action in this case arose in 2005 but this suit was filed on 25th September 2013. That is, this suit was brought 8 years after the cause of action had arisen.

One of the principles of the statutes of limitation is that a person who sleeps on his right should not be assisted by the Courts in an action for recovery of his property. A person who is aware of his rights but allows them to go stale should not be allowed to revive the said stale action to the detriment of an adversary. It is similar to the equitable principle that equity aids the vigilant and not the indolent and it prevents a party from acting unconscionably –Nwadiaro V Shell Petroleum Development Company Ltd (1995) NWLR Pt 150 322; Shell Petroleum Development Company of Nigeria Ltd V Amadi (2010) 13 NWLR Pt 1210 32. The philosophy behind the Limitation Laws was stated by Tobi, JCA (as he then was) in Merchantile Bank (Nig) Ltd V Feteco (1998) 3 NWLR (Pt 540) 143 at 156-157 thus:

“A statute of limitation is designed to stop or avoid situations where a plaintiff can commence an action anytime he feels like doing so, even when human memory would have normally faded and therefore failed. Putting it in another language, by the statute of limitation, a plaintiff has not the freedom of the air to sleep or slumber and wake up at his own time to commence an action against a defendant. The different statutes of limitation which are essentially founded on the principles of equity and fair play will not avail such a sleeping or slumbering plaintiff….” 

I hold the view that the right of the Claimants to challenge the action of the Defendants became extinguished the moment they neglected to challenge the said action of the Defendants within three (3) months as stipulated by law.

On the basis of the foregoing analysis therefore, my decision I have arrived at is that the filing of the Complaint eight (8) years after the cessation of the act complained of clearly offends Section 2 (a) of the Public Officers Act. I find in the result that this Court lacks jurisdiction to entertain this suit. The same shall be and is accordingly dismissed.

I make no order as to costs.

SINMISOLA O. ADENIYI

(Presiding Judge)

11/04/2018

Legal representation:

Ededem C. Ani Esq. for Claimants/Respondents

Otuka J. Otuka Esq.for 1st Defendant/Respondent

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