IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
Before His Lordship:-
HON. JUSTICE E.D. E ISELE – JUDGE
DATE: 19TH NOVEMBER, 2019 – SUIT NO: NICN/KT/03/2018
BETWEEN
SAIFULLAHI SULEIMAN …………………………………………CLAIMANT
AND
UMARU MUSA YAR’ADUA UNIVERSITY KATSINA……….RESPONDENT
REPRESENTATION: Parties absent
Abdulaziz Isa Umar, Esq. holding the brief of Abdul Aliyu, Esq. for the Defendants
JUDGMENT/RULING
The claimant filed this suit on the 4th of April 2018 wherein he claims:
- A DECLARATION that the purported dismissal of the Claimant as a Plant Operator by the Defendant vide a letter dated the 14th day of August, 2014 without appearing before the Council to afford him the opportunity of making representations in person and neither did he appear before the Committee of the Council and the Senate to give him the opportunity to appear before the committee to make his representations and defence thereon is unconstitutional, tantamount to a breach of his right to fair hearing guaranteed and protected by the constitution of the Federal Republic of Nigeria 1999 (As Amended).
- A DECLARATION that the dismissal of the Claimant from office as a Plant Operator by the Defendant is null and void for want of compliance with the laid down statutory procedures and the condition of service governing his appointment.
iii. AN ORDER OF THIS HONOURABLE COURT re-instating the Claimant back to his office as a Plant Operator of the Defendant with all the rights, benefits and privileges appertaining thereto, including but not limited to salaries, emoluments, bonuses, allowances with effect from the 14th day of August, 2014 being the date he was dismissed.
- A DECLARATION that the Defendant should pay the Claimant all the salary and entitlements that would have accrued to him taking into cognizance his expected promotion now to CONTISS 7 from the date of his wrongful dismissal i.e 14th day of August, 2014 up to the date of delivery of the judgment of this Honourable Court.
- Cost of filing and prosecution of this suit against the Defendant.
The writ in this case was accompanied by a statement of claim (facts), the claimant’s sworn statement on Oath, a list of documents to be relied on at the trial and the said documents themselves.
On the 31st of January 2019 this court granted the Defendants motion filed on 26th April 2018 for extention of time to file a memorandum of conditional appearance and statement of Defence out of time. The defendant had also filed a Notice of preliminary objection on that same 26th April 2019 and had contended therein that the Honourable court lacks jurisdiction to entertain the suit as same is statute barred.
In the affidavit in support of the preliminary objection, the deponent averred that the claim of the claimant relates to the issue of dismissal from service between the claimant and Respondent. That the cause of action arose on the 14th of August, 2012 when the letter of dismissal from service was served on the claimant/Respondent by the letter No UMYU/REG/SEC/0006/46/VOL.1/47 dated 14th August, 2012 which was annexed as exhibit A.
The Deponnent maintained that the Claimant was supposed to file his action within 3 months after he was dismissed. That the respondent was duly served with the letter of dismissal from service on the 14th day of August, 2012 by the Defendant Applicant. That the Claimant/Respondent ought to have commenced this action on or before the 16th of November, 2012.
That the present action was commenced on the 4th day of April 2018 which is over 5 (five) years, five months and ten (10) days after the three months statutory period allowed by the law.
In the written address in support of the preliminary objection a sole issue was formulated for determination.
“Whether this Honourable Court has the jurisdiction to hear and determine the claim”.
Here, the Defendant objector had argued that a careful perusal of the claim as contained in the statement of fact dated 4th day of April, 2018 clearly reveals that the claim of the claimant is not within the jurisdiction of the court more so, having regards to the provision of S.2 (a) of the Public Officers (Protection) law cap III laws of Katsina State, 1991 which provides.
“Section 2 – 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 law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following provisions shall have effect-
- Limitation of Time: 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 or injury, within three months next after the ceasing thereof”.
Based on the above provision the objector submitted that the claim of the claimant is incompetent as it is caught up by the provision of the limitation law. The objector submitted further that the court should hold that the preliminary objection is well grounded, the issue of jurisdiction being a threshold issue and a life line for continuing any proceeding citing MADUKOLU V. NKEMDILIM (1962) 2 SCNLR and SEATRUCKS LTD V. ANIGBORO (2001) 2 NWLR (pt 696) 159.
That it is a settled principle of law that the jurisdiction of the court is determined by the subject matter and the claim before the court citing NNPC VS SLB CONSORTIUM LTD (2008) 16 NWLR (pt 113) 297 @ 304, amongst others.
The Claimant/Respondent filed a reply to the preliminary objection where he formulated a sole issue for determination.
“Whether section 2 (a) of the Public Officers Protection Law cap 3Laws of Katsina State 1991 can avail the defendant/Applicant taking into consideration the facts and circumstances of the claimants/respondents suit?
In the argument, the Respondent submitted that notwithstanding the provision of section 2 (a) of the Public Officers Protection Law CAP 3 laws of Katsina State 1991 limiting action against the Defendant to be commenced within 3 months from the date of any act or wrong done, the Defendant/Applicant should not be covered by the provision of section 2 (a) if the suit falls within the exception created by law. He relied on the law that: “the Public Officers Protection Act and Laws do not apply to constitutional matter including matter involving fundamental rights and declaratory action; This is so, otherwise, the enforcement of the constitution against the state and its Public Officers, in cases of violation would be virtually impossible and thereby the constitution would be rendered worthless. Finally the Public Officers Protection Law does not apply to matters under fatal accidents laws, contracts, recovery of land and claims for work done” citing DYSON V.A.G (1911) K-B 410, IGBE V. GOVERNOR OF BENDEL STATE (1981) 1 NCLR 183 among others from the book administrative law by Ese Malami 4th Edition 2013 ISBN 978-088-609-7 at pg 517)
He argued that a careful perusal at the reliefs sought by the Claimant/Respondent before this Honourable Court would reveal that they are declaratory reliefs and in fact relief no (1) is seeking for a declaration of the court that the dismissal of the Claimant by the Defendant without giving him an opportunity to defend himself is unconstitutional, tantamount breach of his right to fair hearing guaranteed and protected by the constitution of the Federal Republic of Nigeria 1999 (As amended) and the case being a constitutional matter and also for the enforcement of the fundamental right of the Claimant/Respondent to fair hearing. He also relied on the case of GOVERNOR OF BENDEL STATE VS OBAYUWANA (1983) 4 NCLR 96. As cited at page 517-518 in Administrative law by Ese Malami (Supra) where the court of Appeal had held that a citizen under 1979 constitution has an unfettered right of action to seek any redress in court or for the determination of any question as to his civil rights and obligations therefore, he cannot be inhibited by procedural laws the petition of rights law and the Public Officers Protection Law.
In response the objector submitted in the reply on points of law that the submission of the learned counsel to the Respondent in paragraph 3.3 of the reply which is to the effect that Public Officers Protection Act and law do not apply to constitutional matters including matters involving fundamental rights and Declaratory actions are not only false but untrue that more so, all cases cited in the said paragraph 3,3 of the reply are old cases which do not represent the current position of the law.
Counsel for the objector submitted that the current position of the law has been stated in OKAFOR V. BENDE DIVISIONAL UNION (2016) 68 NSCQR page 417 at 457 para B where the Supreme Court held per Kekere-Ekun JSC that:
“That the effect of a limitation law is that legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. A limitation law removes the right of action of a plaintiff his right of enforcement and the right to judicial relief, hearing him with a bare and empty cause of action, which he cannot enforce”.
By the above decision the objector submitted and urged the court to hold that the claimants right of enforcement to judicial relief have been removed leaving him with a bare cause of action which he cannot enforce.
Reliance was also placed on the Supreme Court decision in ASABORO V. PAN OCEAN OIL (2017) 69 NSQR pg 1, pg 29 para where the court held that the implication of the action being statute barred is that a plaintiff who ordinarily would have had a cause of action by judicial process because of the period of time laid down by the limitation law for instituting such an action has elapsed, automatically loses that right to approach the court to ventilate his grievance.
The objector also pointed out the fact that the Respondent did not file a counter affidavit and it is trite that any averment that is contained in an affidavit that is not either contradicted or challenged is deemed to be proved. That it is equally settled that an address of counsel no matter how beautiful or persuasive, such address cannot replace evidence and would not be used to controvert evidence provided by the other side citing IZE IYAMU OSAGIE V. INEC NSCQR (2017) VOL 71 pt 2 pg 839 at 914.
COURT’S DECISION
I have had cause to go through and read through the addresses of both parties. And I have also read through the originating process and the pleading of the claimant and it is apparently clear that the claimant has commenced this action over 5 (five) years after his dismissal by the Defendant.
The Claimant/Respondent had in paragraph 3.3 of his reply cited. Indeed looking at the 3 cases cited therein DYSON (supra) is an English case reported in 1911, IGBE V. GOV’NOR OF BENDEL STATE (1981), VOTENISKY NIG LTD V. MILITARY GOV’NOR OF BENUE/PLATEAU (1976) and CHIGBO V. IGP (1973) are all old cases cited by the learned author Malami in his 2013 book. I indeed had the benefit of reading the book myself and found that the applicable is that case of IBRAHIM V. JUDICIAL SERVICE COMMISSION (1998) 14 NWLR pt 584 ISC.
Prominent mention of this case is mentioned at pages 518 and 519 under the sub-heading:
“Public Officers Protection covers public officers and public bodies. In the case of Ibrahim the Supreme Court held that the action was statute barred because it was not brought within 3 months of the action.
I do not therefore readily agree with the submission of counsel for the Respondent especially where he has not cited recent cases that say a denial of the right to fair hearing that operates as an exception to the applicability of the law in S.2 (a) of the Public Officers Protection Law or Act. However that is not to say that the provisions of fundamental human rights and the enforcement of fundamental right under the fundamental rights enforcement procedure rules do not limit the applicability of limitation laws, in fact they do just like the learned author opined but specifically so in the case of fundamental rights enforcement procedure. However their applicability is not absolute by any means. In the case of SEATRUCKS LIMITED V. PANYA ANIGBORO (2001) 1 MJSC III, (2001) 2 NWLR (pt 696) 159 the Supreme Court decided on whether a claim for wrongful dismissal can be brought under fundamental right enforcement procedure. The apex court held that there is no dispute in the instant case that the complaint of the plaintiff/respondent is a claim for wrongful dismissal, and the principal relief is for reinstatement which the court ordered. The claim for wrongful dismissal is clearly not one that can be brought under fundamental right enforcement procedure. That even if the alleged breach of the fundamental right flowed from the main complaint, they are not synonymous and cannot support an application under the fundamental rights (Enforcement Procedure) Rules. The apex court went on to hold that the courts below were in error for holding that the respondent’s action brought under the fundamental rights (Enforcement Procedure) Rules was proper. That the proceedings in the High Court of Warri, Judicial Division were in competent and therefore accordingly null and void and that the proceedings in the court below founded on the proceedings in the High Court were equally a nullity.
In the premises of the above decision and those cited by the objectors, I hold that the claim of the claimant is clearly statute barred having been commenced well after 5 (five) years after the cause of action arose. The claim of the claimant is here by struck out and ruling entered accordingly.
There is no award as to costs.
_____________________________
HON. JUSTICE E. D. E. ISELE
JUDGE
