IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP, HON.JUSTICE N.C.S OGBUANYA

 

                                                                             

SUIT NO: NICN/ABJ/118/2017

DATE:  MAY 30, 2019

 

BETWEEN:

 

MARGRET EZEAGWU                                          - CLAIMANT/RESPONDENT    

                         

AND

 

NIGERIAN PORTS AUTHORITY                         - DEFENDANT/APPLICANT

 

REPRESENTATION:

Thaddaeus Dzege, Esq - for the Claimant/Respondent;

Anthony Nwobueze,Esq - for the Defendant/Applicant

 

RULING

 

This Suit was originally commenced at the Federal High Court, Port Harcourt Division on 6th October 2011 and later transferred to National Industrial Court of Nigeria (NICN) Abuja Division on 26th May 2016 and later refiled at the Port Harcourt Division of NICN.

 

By a Writ of Summons refiled at NICN on 10th November 2017, the Claimant claimed against the Defendant for the following reliefs:

(1). A Declaration that the Dismissal of the Plaintiff by the Defendant without due process is unlawful , null and void contrary to the Public Service Rules 2008

(2). A Declaration that the Dismissal of the Plaintiff by the Defendant without giving her any opportunity of being heard on the ground so raised amount to denial of  her fair-hearing as guaranteed under Section 36 of the Constitution  of Federal Republic of Nigeria 1999 (now amended in 2011)

(3). An Order of court for Defendant to immediately re-instate the Plaintiff into its employment without any loss of status or any entitlement due thereby.

(4). Any other Order(s) that this court may deem fit to make in the circumstances.

 

 

 

 

 

 

The Defendant reacted with its defence processes wherein it denied the claims, followed with a Notice of Preliminary Objection dated 27th December 2017 and filed on 28th December 2017, challenging the jurisdiction of the court, on the ground that the suit has become statute-barred, having been caught by the provisions of S.2 (a) Public Officers Protection Act (POPA); the suit having not been commenced within the prescribed three months of the cause of action.

 

In opposition to the Preliminary Objection, the Claimant/Respondent filed a Counter-Affidavit with Written Address dated and filed on 30th January 2018. In furtherance of the objection, the Claimant two (2) separate Reply on Point of Law. One dated 23rd February 2018 and the other dated 28th February 2018. At the Hearing proceedings of 22nd March 2019, learned Counsel for the Defendant/Applicant moved the court to strike out the earlier one of 23rd February 2018 and retain the later one of 28th February 2018. The said earlier one was accordingly struck out, leaving that of 28th February 2018 as subsisting.

 

Both counsel agreed that the Notice of Preliminary Objection should be taken first before the substantive suit, as the Defendant/Applicant’s counsel had insisted the Application presents good point on law to knock out the case at Preliminary stage. On that note, the matter set down for Hearing of the said Pending Notice of Preliminary Objection.

 

Moving the Application, learned Defendant/Applicant’s Counsel adopted the processes filed; particularly the Written Address dated 27th December and filed on 28th December, 2017 and the subsisting Reply on Point of Law dated 28th February 2018. Counsel raised a sole issue for determination- Whether or not the case is statue-barred given that it was not filed within 3 months allowed by S.2 (a) POPA, the Defendant being a Public Officer?

 

Referring to Paragraph 4 (2) Affidavit in support as shown in Paragraphs 13 and 14 of the Statement of Claim, Counsel submitted that the Claimant is an employee, whose cause of action in the suit arose sometime on 30th October 2009 and the action was brought on 6th October 2011, about 2 years after the cause of action arose, contrary to the 3month-limits prescribed in S.2 (a) POPA.

 

 

 

 

 

Counsel hulled in a myriad of cases on application and effect of statute-bar on jurisdiction of the court, such as: Ihrahim v.J.S.C [1998] 14 NWLR 584 1 @ 31- 32 para H-B; Worherem v. Emeruwa [2004] 13 NWLR (Pt. 890) 398 @ 415 Para F-H; Anozie v. A.G.F. [2008] 10 NWLR (Pt.1095) 278 @ 291, Para. H; Controller-General Prisons v. Idehen [2010] 3 NWLR (Pt.1182) 502 @ 515, Para. B, and contended that the suit has become statue-barred and therefore, the court lacks jurisdiction to entertain same. He urged the court to so hold and dismiss the suit.

 

On his part, learned Claimant/Defendant’s counsel in opposition to the Notice of Preliminary Objection, pointed that he filed Counter-Affidavit deposed to on 30th January, 2018 by learned Counsel himself. He also drew attention to his Written Address dated and filed on 30th January, 2018, in which he raised a sole issue for determination- Whether the action is statue-barred i.e whether S. 2 (a) POPA is applicable to this suit?

 

Counsel adopted the Written Address and relied on the averments in the Counter-Affidavit in opposition to the Preliminary Objection. To Counsel, the crux of the opposition to the preliminary objection is that S. 2 (a) POPA does not apply to this suit being an employment contract claim which the limitation effect in POPA does not affect. And given the circumstance of the Claimant’s case, the Defendant/Applicant should not take advantage of the provision as it is in gross violation of the rule of natural justice of fair Hearing, in that the Claimant/Respondent was dismissed without being afforded any opportunity of being heard. Counsel refers to paragraph 4 of the Defendant/Applicants’ Affidavit in support of the Preliminary Objection wherein the Defendant/Applicant admitted breaching the fair hearing of the Claimant while dismissing her. Counsel cited and relied on Adusec v. Adebayo (2012) All FLWR (Pt. 627) 66 @ 679, paras. B-C, to the effect that an admission requires no further proof.

 

Arguing that the circumstances of the case reveals breach of constitutional provisions regarding fair hearing, counsel cited and relied on Mohammed v. Abu Zaris [2014] 7 NWLR (PT.1407) 500 at 539-540 para. F-H, to the effect that S.2 (a) of the POPA is subject to 1999 the Constitution (as amended). Thus, a public officer who has contravened the provision of the constitution as related to fundamental rights therein, in the execution of his public duty cannot claim protection under the Act, counsel submits.

 

 

 

Counsel further pointed that contrary to the position maintained by the Defendant/Applicant on the accrual of the cause of action, the cause of action arose 3rd May, 2011 as deposed to in paragraph 5 of the Counter Affidavit as shown in paragraph 15 of the Claimant’s statement of claim, wherein it was averred that the Defendant refused to consider the appeal. To counsel, cause of action arose when the Defendant refused to consider her appeal after the dismissal.

 

Concluding, Claimant/Respondent’s counsel urged the Court to dismiss the preliminary objection and award substantial cost against the Defendant/Applicant.

 

In his Reply on Point of Law, in response to the arguments of the Claimant/Respondent’s Counsel that POPA does not apply to a contract of employment of statutory flavour, learned Defendant/Applicant’s counsel cited and relied on Bakare v Nigeria Railway (2002) 22 WRN 60, which held that S.2 (a) POPA applies to contract of employment, as the instant case.  Counsel argued that the Supreme Court also had in UNIJOS v. Ikegwoha [2013] 9NWLR (Pt. 1360)478 and Yare v. N.SW and I.C [2013 12 NWLR (Pt.1367)173, applied the S.2 (a) POPA to “annihilate the cases of the Appellants which were based on contract of employment”. Counsel further argued that in Sunday v. Chief of Defence Staff [2016] 1 NWLR (Pt. 1494)615, the Court of Appeal , when faced with the same question, as to whether or not the limitations provisions of S.2(a)POPA applies to contract of employment?, the Appellate Court  answered in  the affirmative; that it applies.  Counsel concluded and urged the court to uphold his submissions on the preliminary objection and dismiss the suit.

COURT’S DECISION

This Defendant/Applicant’s Notice of Preliminary Objection innocuously   challenges the   jurisdiction of this court to hear and determine the claims in this suit; the action having been commenced outside the 3-month statutory period set out under S.2 (a) POPA. Nevertheless it was hotly contested on both sides; for and against whether POPA statute of limitation objection applies. Whereas the Defendants’ counsel contended that the suit is caught by the provisions of S.2 (a) POPA, and therefore non-justiciable and liable to be dismissed, it is the Learned Claimant’s spirited contention that though the suit was commenced outside the 3-month prescribed timeline under S.2 (a) POPA, but that the suit still survives, as the facts and circumstances of the suit fall outside the general rule of statute-bar, and constitutes an exception or does not apply at all, the suit being employment contract claims.

 

There is no doubt that the issue bordering on jurisdiction of court is a radical one and always occupies a pride of place in the proceedings towards addressing of issues raised for determination for effectual resolution of the matter in dispute between the parties before the court. For me, if it comes to the fore that the court lacks jurisdiction to hear and determine a suit pending before it, that is the end of the judicial exercise of power in entertaining the suit and the rest of the issues awaiting determination in the substantive suit abate forthwith, having lacked foundation to rest upon and anchor judicial efforts for valid resolution of the matter in dispute.

 

 This axiomatic legal proposition may have informed the proposition by the learned Defendant/Applicant’s counsel to set down the preliminary objection for hearing, as he believes the suit would not survive that round of bout. The S.2 (a) POPA states:

"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-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 any case of a continuation of damage or injury, within three months next after the ceasing thereof'.

 

In Ajayi v. Adebiyi [2012] 11 NWLR (Pt. 1310) S.C. 137@ Pp. 196-197, paras. G-B,(Ajayi’Case), the Supreme Court elucidated on the essence of statute of limitation thus:

“A statute of limitation of action is designed to stop or avoid a situation where a plaintiff can commence action anytime he feels like doing so, even where human memory would normally have faded and therefore failed. Put 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 principle or equity and fair play, will not avail such a sleeping or slumbering plaintiff”.

 

In the Ajayi’Case (Supra) @ P. 172, paras. B-E, the apex court went ahead to lay the effect of statute-barred on a pending suit, thus:  

“Where an action is statute-barred, a plaintiff who might 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 Limitation Law for instituting such an action had elapsed and the right to commence the action would have been extinguished by law”.

 

 

 

 

See also other cases to the same effect: AG, Adamawa State v. AG, Federation [2014]1NWLR(Pt.1428)SC ; Lafia LG v. Gov. Nasarawa State [2012]17NWLR (Pt.1328)94SC; Sulgrave Holdings Inc. v. FGN [2012]17 NWLR (Pt.1329)309SC; Adigun v. Ayinde [1993] 8NWLR (Pt.313)516; Emiator v. Nigerian Army [1999] 12 NWLR (Pt. 631) 362; Ekeogu v Aliri [1991] 3 NWLR (Pt. 179) 258; Permanent Sec; Ministry of Works, Kwara State v. Balogun (1975) 5 SC 57; Ibrahim v. JSC [1998 14 NWLR (Pt. 584) 1; Offoboche v. Ogoja L.G. [2001] 16 NWLR (Pt. 739) 458; Egbe v. Adefarasin (No.1) [1985] 1 NWLR (Pt. 3) 549; Obiefuna v. Okoye (1964) 1 All NLR 96.

 

The gist of the Claimant’s case is that she was employed by the Defendant as an Assistant Manager (Nursing). On 12th May 2006, she applied to go on a sabbatical leave of absence to enable her to undergo a Nursing program in United Kingdom for duration of one year, starting from 1st June 2006. The Defendant did not react upon receipt of the said Claimant’s letter. The Claimant then proceeded to the travel. At the end of the sabbatical leave period, the Claimant returned to Nigeria and returned to work on 12th September 2008 but was not allowed to work as the Defendant had issued a letter dated 21st July 2009, dismissing her from the Defendant’s employment. After unfavourable appeal against her dismissal, she commenced this suit on 6th October 2011 to challenge her said dismissal.

 

Interestingly, both parties are in tandem with the fact that the suit was commenced outside 3 months of the cause of action, even if the actual date of cause of action was variedly disputed by the Claimant’s counsel. What is however in contention is as to the applicability of the general rule or if any exception avails the Claimant? Thus, the principal issue to determine here is whether any of the known exceptions to the general application of the rule on statute of limitation avails the Claimant?  

 

From a succinct review of long line trending judicial authorities on this subject, two classes of exceptions to POPA jurisdictional objection emerged- one is whether the subject matter of the claim is outside the scope of the provision to render it inapplicable, such as actions founded on contract and where continuous damage is established to keep the cause of action running and not yet crystallized. See: AG, Rivers State v. AG, Bayelsa State [2013]3NWLR (Pt.1340)123@144-150.

 

 

 

 

Another class  of exception is where the acts of the public officer was outside lawful authority, such that the action complained about was done malafide and outside ‘the colours of office’, and thus, cannot be justified. See the the latest Supreme Court case of Kwara State Pilgrims Welfare  Board v. Alhaji Jimoh Baba [2018]9NWLR (pt. 1623) 36 on an exception bordering on bad faith / acting outside the ‘colour of office’ i.e acts done without legal justification. This class of exception usually entails giving evidence at the trial to ascertain the extent of breach of duty and unconstitutional act.

A trial court faced with this type of exception is usually admonished to be weary of treating any substantive issue at interlocutory stage via preliminary objection, to avoid being pitched another tricky adjudication principle -that a trial court should not at interlocutory stage overreach issue slated for the substantive suit. As the presence or otherwise of any of such exceptions is a question of fact of the surrounding circumstances, an inquiry to unravel the evidence to establish any of such exception would lead to delving into the substantive suit. This class of exception cannot easily be dealt with at the preliminary level of the objection by normal arithmetical computation of time between the cause of action and the filing of the suit by gleaning on the originating process filed by the Claimant. It is best taken together with the substantive suit. See: Ezeani v. Nigerian Railway Corporation [2015]3NWLR (Pt.1445) 139 @ 166, paras.D-G, per Pemu JCA.

The Claimant/Respondent’s counsel however presented a mixture of the two classes of exceptions to statute of limitation- (i) that POPA is not applicable to employment contract and (ii) breach of the acts of the Defendant as public officer was outside the colours of office, thereby constituting breach of fair hearing against the Claimant. Counsel however, unwittingly conceded to hearing of the preliminary objection separately and at preliminary stage. Thus, making the hearing at preliminary stage susceptible for the court to falling into temptation of reviewing evidence not yet tendered at the substantive level; as to whether the Claimant was denied fair hearing or the Defendant acted  malafide and ‘outside  of colours of office’.

 

 

 

In the circumstances, having not taken evidence on the alleged breach of fair hearing and acts of malafide /acts outside the colours of office, to establish the exception to application of the limitation provisions of POPA, I find and holdthat this aspect cannot be reviewed at this preliminary stage as the main case of the Claimant borders on breach of fair hearing in her dismissal, which is being challenged in the substantive suit.

On that note, the Application would be considered solely on the basis of the class of exception bordering on non-applicability of POPA limitation period on Contract of employment. I so hold.

In my view, the lingering issue arising for consideration in determination of this Application is- whether limitation provision under S.2 (a) POPA applies to contract of employment? In other words, is employment contract claims one of such contracts that are excused from operation of POPA?  The issue as to whether POPA and similar associated statutes of limitation applies to specific Contracts has since been rested by the apex court in Nigeria.  

Tracing the evolution of judicial decisions on the subject reveals that as at 1974, the Supreme Court in NPA v. Construzioni S.P.A (1974)1All NLR (pt.2)463 had held that the provision of S.97 Ports Act which is identical to S.2 POPA is not applicable to contracts. This decision was followed in F.G.N v. Zebra Energy [2002]18NWLR (Pt.798)162 and Osun State Government v. Dalami (Nig.) Ltd [2007]9NWLR (Pt.1038)66. The NPA’ Case involved a contract entered into between the parties for construction of second Apapa Wharf extension. The Zebra Energy’ Case was in respect of a contract for building and allocation of offshore oil blocks. And the Osun State’ Case was in respect of a lease agreement for management of Cocoa Products Industry in Ede, Osun State.  All these cases relate to specific contracts and the apex court had the occasion to hold that the limitation statutes are not applicable to such contracts.

However, on the part of employment contract claims (contract of service), trends of judicial precedent tend to depart from the pattern of other forms of contract. Employment contract claims (contract of service) have been inexplicably excised out of the category of contracts where statutes of limitation in the likes of POPA were held to be inapplicable.

 

 

From the evolutionary trend of authorities, the exclusion of employment contract claims (contract of service) from the contracts excused from operation of POPA, even started earlier in 1972 and continued in the later years, as revealed in the Supreme Court’s cases of N.B.C v. Bankole (1972) NSCC220 and Bakare v. Nigerian Railway Corporation [2007]17NWLR (Pt. 1064)606.  In both cases, the Plaintiffs instituted their suits for unlawful termination of their employment outside 12 months as provided for by the relevant statutes. The Supreme Court however held that the actions were statute-barred and that the Defendants enjoyed the statutory privilege provided in S.61 (1) of the Broadcasting Corporation Act (Bankole’Case), and in S.83 (1) of the Railway Act(Bakare’Case), respectively. Both protective provisions were identical to the Public Officers Protection Act (POPA). Also, in Forestry Research Institute of Nigeria v. Gold [2007] 11NWLR (Pt.1044)1, the Supreme Court again held that POPA applies to contracts of employment.

Since this judicial development as also expressed in other later cases by the Supreme Court, the Court of Appeal has followed suite, making employment contract claims to be subjected to the harsh effects of POPA and other like statute of limitation (extinguishing the cause of action and any right accruable to litigant). In Tajuddeen v.C.P.SB [2010]4NWLR (Pt.1184)CA325 @340, Para.H, His Lordship, Juaro JCA, emphatically restated that since the Supreme Court’s position is to the effect that POPA  is applicable to contracts of employment, the Court of Appeal is bound by the decisions of the Supreme Court and would follow suite.

In fact, in the Bakare’Case (N.R.C), an attempt by the learned Appellant’s counsel to move the Supreme Court to reverse its earlier decision in Bankole’Case(N.B.C)was stoutly rebuffed by the Supreme Court per Mohammed JSC, @ Pp.663-664, paras.C-A, holding that counsel failed to  present material occasioning injustice on employees to warrant  invoking  the apex court’s jurisdiction to reverse itself and depart from its earlier decision. This has remained the position as argued by the learned Defendant/Applicant’s counsel, also relying on other similar authorities, while urging this court to follow suite and dismiss the Claimant’s case, which was unarguably filed out of the 3-month limit prescribed by S.2 (a) POPA. I find this precedent-based proposition as forming the gamut of the Defendant/Applicant’s grouse against the Claimant’s Suit, as expressed in the Notice of Preliminary Objection under consideration.

Going forward, the arising nagging question is, has there been a change in the position of law on this subject? Put differently, is the position earlier taken by the Appellate Courts (Supreme Court and Court of Appeal) still subsisting and remains the legal regime for resolution of this lingering issue posed for determination in this Application? To my mind, I will answer NO; that the trend has changed.  Informed research reveals that another prevalent precedent has emerged, given the recent position taken by the Supreme Court in the very recent case of N.R.M.A & FC v. Johnson [2019]2NWLR (Pt. 1656) SC247, on this recondite issue. There, my Lord, Ariwoola JSC in the lead Judgment of the apex court, wittingly included Contract of Service in the family tree of Contracts not affected by the limitation statutes, thereby reversed the age-long dichotomy in operation of limitation statutes between specific contract and contract of service, as maintained by the Supreme Court and Court of Appeal over the years, in many decided cases (I had earlier cited and reviewed).

 

The celebrated Johnson’Case involved employment claims of some persons employed by the National Revenue Mobilization Allocation And Fiscal Commission (N.R.MA&F.C) at the twilight of the outgoing military administration in May 1999 but which employment was cancelled by the incoming civilian Government. Referring to the NPA’Case and Osun State‘Case (supra), the Supreme Court @ p.270, para. F, emphatically held thus:

“Section 2(a) of the Public Officers Protection Act does not apply to cases of contract. In this case, the respondent’s claim is on service contract. Thus, the appellants are not covered by the provisions of the Public Officers Protection Act”.  (Emphasis mine)

 

Having brought forth to the fore this most recent and apt authority of the apex court on the issue slated for determination in this Application under consideration, and in due reverence to the hallowed doctrine of stare decisis and judicial precedent, of which I am sworn-bound to honour and observe, I can only take a bow and bend to apply the law as it is now, no longer as it was before. Consequently, I find and hold that the earlier position taken by the Appellate Courts no longer represents the current state of the law on the subject, which frees me to discountenance same.  Nevertheless, I am again bound to follow a new pathway set forth in the new precedent. I so hold.

 

Accordingly, in line with the recent Supreme Court decision in the Johnson’ Case (supra), and this suit being an employment claim of service contract, in my considered view, the S.2 (a) of the Public Officer Protection Act (POPA), prescribing 3-month time limit to commence suit upon arising of the cause of action, no longer apply to employment claims, as in the instant case. I so hold.

 

In the circumstance, this Preliminary Objection by the Defendant/Applicant fails completely as lacking in merit and being otiose. It is hereby dismissed. I so hold.

 

I must say that this Ruling reflecting the current state of the law would not have been arrived at if left at the extent of research conducted by both counsel. Incidentally, none of them brought this very important authority to the attention of the court, particularly the Claimant’s counsel whose efforts to save the Claimant’s case would have been diminished by the devouring posture of the hitherto prevailing position of law on the issue, which led to abrupt slaughter of many cases falling victim of the POPA statute of limitation objection. I hasten to say that, as the law is fervently evolving and trendy in operation, effective research has become the most potent tool-kit of modern dispute resolution. 

 

On the whole, this Suit survives. It is hereby set down for Trial of the substantive matter.

 

Ruling is entered accordingly. I make no order as to cost.

 

 

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HON. JUSTICE N.C.S OGBUANYA

                      JUDGE

                    30/05/19