IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE

 

Dated: 15th October 2018                                     

SUIT NO: NICN/ABJ/102/2018

           

Between:             

 

Marilyn E. Ogar                                                                  -           Claimant/Respondent

 

And

 

1.     Attorney General of The Federation             

2.     State Security Service (SSS)                                    Defendants/Applicants

3.     Director General State Security Service

 

Representation:

Adeola Adedipe, with him, Olukayode Olojo, O. C. Ogunyemi, F. A. Shehu and Deborah Opete for the Claimant/Respondent

C. B. Okoli and Uche Anidobi for the 1st Defendant/Applicant

Jamilu Hamisu for the 2nd and 3rd Defendants/Applicants

 

JUDGMENT/RULING

The Claimant commenced this action in this court on 17th April 2018 vide the Originating Summons process. The originating summons was heard on 16th July 2018 together with the preliminary objections filed by the defendants challenging the competence of the Claimant’s suit. Both the Judgment on the originating summons and the ruling on the preliminary objections were fixed to be delivered today.

 

In her Originating Summons, the Claimant sought determination of the following questions:

1.         Whether or not the Claimant is a public officer in law and whether her employment with the 2nd Defendant has a statutory flavour.

2.         Whether or not the Claimant can be lawfully terminated, retrenched, retired or otherwise removed from her employment with the 2nd Defendant, other than in accordance with the provisions of the Public Service Rules and other statutory provisions regulating such employment.

3.         If the answer to question 2 above is in the negative, whether or not the Claimant is entitled to be reinstated to her employment with the 2nd Defendant.

4.         Whether or not the Claimant can be lawfully demoted by the 2nd Defendant in the absence of any allegation of misconduct, or infraction of any Rule of the Service and or in the absence of fair hearing.

 

Upon the determination of the above questions, the Claimant sought the court to grant her the following reliefs:

1.         A Declaration that the Claimant's employment with the 2nd Defendant has a statutory flavour and same may only be lawfully determined strictly in accordance with the relevant provisions of the Public Service Rules.

2.         A Declaration that the Claimant's retirement from the service of the 2nd Defendant is null and void and of no legal effect.

3.         An Order of Court setting aside the purported retirement of the Claimant from the service of the 2nd Defendant.

4.         An Order of Court reinstating the Claimant to the employment of the 2nd Defendant, accompanied with all the attendant rights, rank, status including the corresponding salaries, allowances, benefits and other emoluments.

5.         An Order of Court directing the Defendants to pay the Claimant all her accrued salaries, allowances and benefits from the time of the purported retirement to when judgment is delivered.

6.         An Order of court setting aside the purported demotion of the claimant from an Assistant Director to Chief Security Intelligence Officer.

7.         An Order of this Honourable Court compelling the Defendants to carry out reliefs 4 and 5 above.

 

The facts upon which the above reliefs were sought by the Claimant are contained in the affidavit of the Claimant in support of the originating summons.  The Claimant averred therein that the 1st Defendant is the Chief Law Officer of the Federation while the 2nd Defendant is a Federal Government Security Service. The 3rd Defendant is the head of the 2nd Defendant and co-ordinates the operations of the 1st Defendant. The Claimant joined the service of the 2nd Defendant in October 1988 and rose to become an Assistant Director. In July 2015, a signal was circulated demoting her from Assistant Director to Chief Security Intelligence Officer. The demotion came to her as a shock since there was no misconduct alleged against her nor was she invited to face any disciplinary panel. Again, in September 2015, she received a letter dated 1st September 2015 from the 2nd Defendant retiring her from the service of the 2nd Defendant. She was surprised at the retirement because she still had about 7 years to her retirement date.

 

Retirement in Public Service is upon attaining 60 years of age or upon 35 years in service, whichever comes first. She was enlisted into the Service in October 1988 while she was born on 7th July 1963. She was also shocked at her retirement because no misconduct or any infraction of any rules of the Service in the discharge of her duties was alleged against her neither was she asked to face any disciplinary panel for any misconduct. Although the retirement stated that her retirement was due to an on-going re-organisation in the 2nd Defendant, there was no re-organisation or any form of restructuring going on in the 2nd Defendant to warrant her retirement. All the institutional structures, organs and departments of the 2nd Defendant remain intact till date. Out of about 10,000 personnel in the employment of the 2nd Defendant, only about 17 personnel were given retirement letters. Recently, there was a newspapers report where it was reported that the Claimant and the few others affected by the retirement were eased out of the Service due to partisanship, corrupt practices and other acts of misconduct.

 

The originating summons was also supported by a further affidavit of the Claimant and written addresses of counsel for the Claimant. The Defendants filed counter affidavits with written addresses in opposing the originating summons. I have mentioned earlier that the Defendants have filed preliminary objections to this suit. As a result, I cannot proceed further with the substantive suit beyond this point. The NPOs have to be considered and determined first before the Claimant’s suit can be examined.

 

THE 1ST DEFENDANT’S NPO

The 1st Defendant’s NPO was filed on 5th June 2018 wherein it sought the Claimant’s suit to be struck out or dismissed on the grounds stated on the NPO. However, the Claimant had filed a motion on 14th June 2018 praying the court to strike out the processes filed by the 1st Defendant on 1st June 2018 for non-compliance with the mandatory provisions of Order 9 Rule 1 (1), Order 15 Rule 1 (1) and Order 18 Rules 2 (2) and 4 of the NICN rules 2017. The processes of the Defendant sought to be struck out are the memorandum of appearance, notice of preliminary objection and counter affidavit and the written address filed in opposition to the Claimant’s originating summons. In the grounds for the motion, the affidavit and written address in support of the motion, the Claimant’s reason for seeking the striking out of the 1st Defendant’s processes is that the originating summons was served on the 1st Defendant on 18th April 2018 but it did not enter appearance or file the counter affidavit and the written address opposing the originating summons including the preliminary objection  within 14 days of service of the originating summons as required by the rules of this court. The 1st Defendant’s memorandum of appearance, counter affidavit and the written address opposing the originating summons and the preliminary objection were filed on 5th June 2018 which was a period of about 48 days of receiving the originating summons without leave of court or order extending time for filing of the processes. It was contended that these processes are irregular and the court was urged to strike them out.

 

The 1st Defendant was served this motion on 14th June 2018, but it did not file any counter affidavit to the motion. In effect, the 1st Defendant did not oppose the motion. From the record of this case, the 1st Defendant was served the originating summons on 18th April 2018. The memorandum of appearance of the 1st Defendant was filed on 5th June 2018. The memorandum of appearance was filed 48 days after service of the originating process on the 1st defendant. Order 9 Rule 1 (1) of the Rules of this court 2017 provide that a party served with an originating process shall file a Memorandum of Appearance within the time stipulated in the originating process and if no time is stipulated, within 14 days of the service of the originating process. In the originating summons, 30 days was stipulated for the 1st Defendant to enter appearance. The 1st Defendant’s memorandum of appearance was not filed within 30 days of receiving the originating summons. The 1st defendant’s memorandum of appearance was filed out of time and no leave of this court or extension of time was sought or granted by this court. Consequently, the memorandum of appearance of the 1st Defendant is incompetent, and it is hereby struck out. The effect is that the 1st Defendant has not entered appearance in this suit. It is the law that entry of appearance in a suit is a condition for a party to be heard in the suit. The 1st Defendant cannot therefore be heard.  All other processes filed by the 1st Defendant are irregular and cannot be entertained by this court. The Claimant’s motion has merit and it is granted. The 1st Defendant’s counter affidavit to the originating summons and the notice of preliminary objection filed by the 1st Defendant are also struck out.

 

2ND AND 3RD DEFENDANTS’ NPO

That leaves only the NPO of the 2nd and 3rd Defendants for consideration. The NPO of the 2nd and 3rd Defendants, filed on 24th May 2018, was brought pursuant Section 2 (a) of POPA and Orders 17 and 18 of the Rules of this court 2017 and prayed the court to dismiss this suit for want of jurisdiction on the grounds that:

a.         The suit was filed more than three (3) months after the claim had arisen and it is therefore statute barred under Section 2(a) of the Public Officers Protection Act 2004.

b.         The Honourable Court lacks jurisdiction to hear and determine the suit.

 

In the written address filed in support of the NPO, counsel for the 2nd and 3rd Defendants, Mr. G. O. A. Agbadua Esq., submitted the following two issues for determination:

1.         Whether the Claimant's suit is statute barred by the provisions of Section 2(a) of the Public Officers Protection Act, Cap LFN 2004;

2.         Whether this Honourable Court has the jurisdiction to entertain the Claimant's suit.

 

On issue one, counsel submitted that where a statute prescribed a period within which an action must be commenced, legal proceedings cannot be properly or validly be instituted after the expiration of the prescribed period. The cases of EBIOGBE vs. NNPC (1994) 5 NWLR (Pt. 347) 649 and KASANDUBU vs. ULTIMATE PETROLEUM LTD (2008) 7 NWLR (Pt. 1086) 274 were referred to. Counsel went on to say that the facts of the Claimant’s case in paragraphs 8 to 24 of her affidavit in support of the Originating Summons disclose the cause of action as the termination of her appointment by the Defendants.  Time began to run from the 1st September 2015, when the cause of action, which was the retirement, arose. However, from the face of the Claimant's Originating Summons, she filed this action on 17th April, 2018, which was a period well over two (2) years after the cause of action arose. The Claimant filed this action outside the three (3) months prescribed by Section 2(a) of the Public Officers Protection Act and the suit is therefore statute barred. These cases, among other were cited by counsel go support his arguments: SANDA vs. KUKAWA LOCAL GOV'T (1991) 2 NWLR (Pt. 174) 379; NPA vs. LOTUS PLASTICS LTD (2005) 19 NWLR (Pt. 959) 158; REUBEN EDEME vs. STATE SECURITY SERVICE (unreported) (2008) Suit No. FHC/B/CS/52/05 and F.R.I.N vs. GOLD (2007) 11 NWLR (Pt. 1044) 1.

 

On issue two, counsel for the 2nd and 3rd Defendants submitted that having become obvious that the Claimant’s suit is statute barred, this Court lacks the jurisdiction to entertain same. Reason being that the claimant has lost his right to sue on his stale claim. EBOIGBE vs. NNPC (Supra) and FRIN vs. GOLD (Supra) were referred to. It was argued in conclusion that the proper order to be made in the circumstance is an order of dismissal of the suit.

 

In opposing the NPO of the 2nd and 3rd Defendants, the Claimant’s counsel filed a written address. In the written address, learned counsel for the Claimant, Adeola Adedipe Esq., first explained the historical background of the case before discussing issues he formulated for determination. In giving the background of the case, counsel submitted that this suit, re-filed on 17th April 2018, was initially filed on 26th November 2016 but the summons was not served on the Defendants until it expired. The motion to renew it was refused and the suit was struck out with leave granted to the Claimant to re-file the suit. Following the ruling, the Claimant refilled this suit on 17th April 2018. Counsel submitted that this suit is not caught up by the POPA. Having made these submissions, learned counsel for the Claimant submitted 2 issues for determination in the NPO of the 2nd and 3rd Defendants. The issues raised by the Claimant’s counsel are:

1.         Whether the Claimant’s suit is statute barred by the provisions of section 2 (a) of POPA.

2.         Whether this court has jurisdiction to entertain the Claimant’s suit.

 

Learned Claimant’s counsel argued both issues together. He submitted that the affidavit of record filed by the Claimant and the motion on notice filed by the Claimant on 11th June 2018 contain facts showing that the Claimant had filed a suit within time. That suit was struck out on 10th April 2018 and it was re-filed by way of the recent suit on 17th April 2018. It was submitted that limitation of time will be reckoned from the date the initial suit was filed. Taken that way, this suit is not statute barred. Counsel relied on the cases of CBN vs. MORENIKE SOULE HARRIS (2017) LPELR-43538; ALHAJI HARUNA KASSIM vs. HERMANN BERTH (TRADING AS CASH STORES) (1966) 1 SCNLR 170 and the Supreme Court judgment in SIFAX NIG. LTD vs. MIGFO NIG LTD delivered on 16/2/2018 in suit SC.417/2015. Counsel argued that limitation period ceases to run the moment the initial suit was filed on 26th November 2015 and even though it was struck out, it remained on the general cause list of the court. Counsel concluded that the commencement date of this case relates back to November 2015 when the initial suit was filed, as such, this suit is not statute barred. Counsel urged this court to dismiss the NPO of the 2nd and 3rd Defendants.

 

CLAIMANT’S MOTION

The Claimant, in addition to the written address filed in opposition to the NPO of the 2nd and 3rd Defendants, also filed a motion on 11th June 2018 wherein she prayed the court for an order striking out the 2nd and 3rd Defendants’ Notice of Preliminary Objection filed on 24th May 2018, for being incompetent, for being an abuse of Court process and for non-compliance with the mandatory provisions of Order 18 Rules 2 and 4 of the National Industrial Court (Civil Procedure) Rules, 2017. The grounds upon which the Claimant premised her motion are as follows:

i.          This case was originally instituted on 26th November 2015 with Suit No. NICN/ABJ/369/2015; and was consequently set down for adjudication before Hon. Justice S. O. Adeniyi.

ii.         While out-of-Court settlement was being explored, the Claimant failed to effect service of the Summons on the Defendants, the lifespan of which expired in the process.

iii.        An Ex-parte application was filed by the Claimant to renew the Originating Summons, but same was opposed by a Notice of Preliminary Objection filed by the 2nd and 3rd Defendants.

iv.        After hearing both applications on 13th February 2018, this Honourable Court, in a Ruling delivered on 10th April 2018, dismissed the Notice of Preliminary Objection for incompetence, while the Suit was struck out, with leave for the Claimant to re-file.

v.         In the Notice of Preliminary Objection filed by the 2nd and 3rd defendants’ out of time, the historical background of this case was deliberately withheld, with the intention to mislead the Court.

vi.        The Notice of Preliminary Objection is an abuse of Court process, and grossly incompetent for non-compliance with the mandatory provision of Order 18 Rule 2 (2) & (4) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017.

vii.       This Honourable Court has inherent powers to dismiss or strike out the notice of preliminary objection.

 

In the affidavit in support of the motion deposed by Fatima Shehu, a legal practitioner in the law firm representing the Claimant in this suit, it was deposed that before the re-filing of this suit, the suit was originally filed on 26th November 2015. However, the originating process of that suit was not served on the Defendants because internal and administrative steps were being considered for possible out-of-Court settlement. When it became apparent that reconciliation cannot occur, the Claimant immediately filed an Ex parte application on 6th April 2017 to renew the life span of the originating summons. On the 13th of February 2018, the Claimant's Motion and a Notice of Preliminary Objection filed by the 2nd and 3rd Defendants were jointly heard Hon. Justice. S. O. Adeniyi. In a ruling delivered on the 10th day of April 2018 in the consolidated suits involving suit numbers NICN/ABJ/367/2015, NICN/ABJ/368/2015, NICN/ABJ/369/2015, NICN/ABJ/370/2015, NICN/ABJ/371/2015 and NICN/ABJ/372/2015, the 2nd and 3rd Defendants’ preliminary objection was dismissed while the Claimant's suit was struck out, with a liberty to re-file it. The instant suit was re-filed on 17th April 2018. The ruling remains extant and has not been varied or set aside by any Court. It was upon re-filing the instant suit and serving same on the Defendants that the Defendants filed the preliminary objection challenging the jurisdiction of this Court to entertain the suit. The Defendants suppressed material facts in respect of the earlier suit in the NPO. The 2nd and 3rd Defendants’ NPO was not filed alongside the Memorandum of Conditional Appearance and it was filed over 30 days of receiving the Originating Summons.

 

In the written address in support of the motion, counsel for the Claimant submitted that these two issues are to be considered in the motion:

(1)      Suppression of facts and Abuse of court process.

(2)      Non-compliance with the mandatory provisions of Order 18 Rules 2 and 4 of the National Industrial Court of Nigeria Rules 2017

 

With respect to the 1st issue, the Claimant’s counsel submitted that the 2nd and 3rd Defendants were aware and did participate in the proceedings of the initial suit which was struck out on 10th April 2018. However, the 2nd and 3rd Defendants failed to bring this information to the knowledge of this court, with a view to mislead the Court or make the court think that this is the first suit filed by the Claimant since his unlawful retirement from service with the aim of deceiving the court into granting the Defendants application. It was submitted that this type of disposition was condemned by the court in the cases of OKOMU OIL PALM LIMITED vs. MR. O. J. OKPAMER (2006) LPELR-7708 CA; C.P.C vs. OMBUGADU (2013) 18 NWLR (Pt. 1385) 66; AJE PRINTING (NIG.) LTD vs. EKITI L.G.A (2009) 7 NWLR (Pt. 1l41) 512. It was further submitted that what the Defendants have done amounted to abuse of court process as held in the cases of UMEH vs. IWU (2008) 8 NWLR (Pt. 1089) 243; SARAKI vs. KOTOYE (1992) 9 NWLR (Pt. 264) 156; R-BENKAY (NIG.) LTD. vs. CADBURY (NIG.) PLC. (2012) 9 NWLR (Pt. 1306) 596. Claimant’s counsel went further to submit that abuse of court process is not taken lightly by the court but usually punished with dismissal. The cases of GLOBE MOTORS L TD vs. HONDA MOTOR CO. LTD. (1998) 5 NWLR (Pt. 550) 373; DINGYADI vs. INEC (No. 1) (2010) 18 NWLR (Pt. 1224)1; ZENITH BANK PLC. vs. JOHN (2015) 7 NLWR 393 were referred to. It was also submitted that the NPO of the 2nd and 3rd Defendants' ought to be treated as an abuse and the consequence will be for this court to decline jurisdiction to determine the application.

 

The other part of the arguments of counsel for the Claimant on issue 1 relates to the same argument already made in the written address in opposition to the Defendants NPO to the effect that this suit is a re-filed suit pursuant to the leave of court and it is not statute barred in view of the claimant’s initial suit. I need not waste time examining the same submissions in detail.

 

With respect to the 2nd issue, the Claimant’s counsel submitted that the 2nd and 3rd Defendants failed to comply with the mandatory provisions Order 18 Rules 2 and 4 of the National Industrial Court of Nigeria Rules 2017 thereby rendering their Notice of Preliminary Objection incompetent. It was argued that these provisions required that an application disputing the jurisdiction of the Court must be made by a motion on notice supported by an affidavit with a written address. The motion must also be filed along with a memorandum of conditional appearance. The Claimant’s counsel argued that the NPO was not brought by a motion neither was it supported by an affidavit. The NPO was also not filed when the memorandum of appearance was filed. While the memorandum of conditional appearance of the 2nd and 3rd Defendants was filed within 14 days of service of the originating summons, the NPO was filed over 30 days thereafter without leave of court or order extending time for the Defendants. It was submitted that these non-compliances render the 2nd and 3rd Defendants’ Preliminary Objection incompetent and liable to be struck out.

 

The 2nd and 3rd Defendant filed a counter affidavit to oppose the Claimant’s motion. The counter affidavit was deposed to by Ayuba Adam, personnel of the 2nd Defendant. He stated that the claimant has earlier instituted a similar suit before this Honourable court with suit No. NICN/ABJ/369/2015 dated 26th November 2015. That suit had similar subject matter and reliefs with the present one and also against the same Defendants. The earlier suit was struck out by the court due to the failure of the Claimant to serve the Defendants with a copy of the originating summons within the time permitted by the law. In the ruling of the Honourable Court, it was held that the originating summons was completely dead and that the best of excuses could not have revived or resuscitated it or breathed life back to it. The court further held that that the Claimant has the right to recommence the action where the circumstances permit. After the suit was struck out, the Claimant instituted another fresh suit with suit No. NIC/ABJ/102/2018 against the same Defendants, with the same reliefs and subject matter. The Defendants have now filed a preliminary objection on ground that the suit is statute barred and should be dismissed as it was filed more than three (3) months after the cause of action had arisen. It was concluded by the deponent that the Claimant is not entitled to the reliefs sought.

 

In the written address in support of the counter affidavit, counsel for the 2nd and 3rd Defendants, Mr. Agbadua, stated the issue to be determined to be whether the 2nd and 3rd Defendants' preliminary objection is competent and has complied with the provisions of the law. In arguing this issue, counsel submitted that the Originating Summons in Suit No. NICN/ABJ/367/2015 dated 26th November, 2015 is dead and cannot be resuscitated. This means that the matter cannot be re-filed. Reinstituting the same matter by the Claimant means resuscitating the originating summons. The statement of the Court that the Claimant reserves the right to recommence the action where the circumstances permit is conditional and not absolute. It was submitted that in view of the fact that the Claimant’s cause of action is already statute barred, the circumstance of this matter does not permit the Claimant to commence another action on the same subject matter against the Defendants. Counsel for the 2nd and 3rd Defendants further submitted that the provision of Order 18 Rule 2(2) is not mandatory when it used the word “may”. Again, it was submitted that the NPO of the 2nd and 3rd Defendants are not raising issues of fact but law. The facts in support of the NPO are already before the court, as such, it was not necessary to support it with an affidavit.

 

The Claimant filed a further and better affidavit in support of her motion. It was deposed by Fatima Shehu, same person who deposed to the affidavit in support of the motion. It was averred that paragraph 9 of the Defendants’ counter affidavit is untrue. The reason for the Claimant's failure to effect service of the summons on the Defendants was that an out-of-Court settlement was being explored. The circumstances permit the Claimant to re-file this suit and that the Claimant's cause of action remains extant, and same has equally been preserved by the order of the court striking out the initial suit. The submission made by the Claimant’s counsel in the reply on points of law is a repeat of the same arguments counsel has made in the written address in support of the motion. I do not see the need to go over the reply.

 

COURT DECISION:

The Claimant has prayed the court, in her motion filed on 11th June 2018, to strike out the NPO of the 2nd and 3rd Defendants. The reasons given by the Claimant for the prayer are these: The 2nd and 3rd Defendants did not comply with Order 18 Rules 2 and 4 of the NICN Rules 2017 and that the NPO is an abuse of court process for suppression of material facts. The Claimant’s counsel submitted, as a result, that the NPO is not competent and should be struck out.

 

Counsel for the Claimant submitted that the NPO of the 2nd and 3rd Defendants flouted Order 18 Rule 2(2) in two major respects. That is the NPO is not by motion and it is not supported by affidavit. To resolve this issue, it is important I examine the provision of the said Order 18 Rule 2 (2) of the Rules of this court. It provides thus:

“Where in matter before the Court, a defendant wishes to dispute the jurisdiction of the Court to entertain such a matter, the Defendant may by a motion on notice, and an affidavit disclosing the facts in support of the application with a written address, apply to the Court to hear and determine the motion."

 

Let me state that a reading of this provision in isolation of other provisions of the order will not do the justice of the matter. The provisions of the whole Order 18 ought to be read together. When that is done, it will be understood that an application to challenge the jurisdiction of the court need not be by motion on notice. It can be made by notice of preliminary objection. See particularly Rules 2 (1), 3, 4, 5 and 6 of Order 18. Having said these, I will return to examine rule 2 (2). The word “may” was used in the rule when describing the type of application to be brought when disputing court’s jurisdiction. That is to say it is not immutable that a motion on notice must be used in bringing application to challenge the jurisdiction of the court. This rule when read in conjunction with rules 2 (1), 3, 4, 5 and 6 of Order  18 reveal that a notice of preliminary objection is  a permissible alternative to a motion on notice when jurisdiction of court is to being challenged in a matter before the court.

 

Although Rule 2 (2) of Order 18 requires an application to be supported by an affidavit, it is not necessary that every motion or notice of preliminary objection be supported by an affidavit. A notice of preliminary objection raised purely on points of law or one where the facts upon which the objection is based are before the Court, there is no need for additional affidavit evidence to be filed. See ALHAJI LAI MOHAMMED VS. CHIEF AFE BABALOLA, SAN (2011) LPELR-8973(CA) 25. In the Defendants NPO where they contended that the Claimant’s suit is statute barred, the facts necessary to determine the objection are the facts of what the cause of action is, when it arose and when the suit was filed. It is settled law that it is the facts of the Claimant’s case in the record of the court that should be examined to discover these facts. See FRIN vs. GOLD (2007) 11 NWLR (Pt.1044) 1; J.S.F. INVESTMENT LTD. vs. BRAWAL LINE LTD. (2011) All FWLR (Pt. 578) 876 at 902; AMEDE vs. UBA (2009) All FWLR (Pt. 469) 479 at 506-507. In the circumstance, the Defendants NPO can be determined without affidavit evidence. Therefore, the Defendants need not file an affidavit to support the NPO.

 

The Claimant’s counsel also submitted that the NPO of the 2nd and 3rd Defendants is incompetent because it was filed out of time without the leave of court extending time for the 2nd and 3rd Defendants to file the NPO. The Claimant’s counsel relied on the provision of Order 18 Rule 2(4) on this point. According to the Claimant’s counsel, the NPO ought to have been filed alongside the Defendants’ memorandum of appearance within 14 days of receiving the original process. While the Defendant’s memo was filed within 14 of service of the originating process, the NPO was filed over 30 days of receiving the originating summons.

 

Order 18 Rule 2(4) of the Rules of this court provides thus:

"A defendant making an application in line with the provisions of sub-rule(2) of this rule shall file along with the motion on notice a memorandum of conditional appearance stating that he or she is appearing conditionally”.

           

The Claimant’s counsel appears to say that this rule requires that an NPO and a memorandum of appearance must be filed at the same time. I do not think so. The provision should not be construed to have set a time limit for bringing a preliminary objection. The import of the rule is that a Defendant served with an originating process but wants to file a preliminary objection, such a Defendant must file a memorandum of appearance along with the application. That is to say a Defendant cannot file a preliminary objection without filing a memorandum of appearance. In my view, a Defendant who has filed a memorandum of appearance in a suit is not precluded from subsequently filing an NPO. That is not the implication of the said rule. It is therefore not necessary that an NPO must be filed at the same time a memorandum of appearance is being filed. It must be clearly emphasised that an objection to the jurisdiction of court can be raised at any stage of the proceeding, and even for the first time on appeal. See OUR LINE LTD vs. S.C.C. NIGERIA LTD (2009) All FWLR (Pt. 498) 210 at 234; OKUDANO vs. KEREGBE (2003) FWLR (Pt. 148) 1384; OGUNLEYE vs. OKE (2009) All FWLR (Pt. 469) 552 at 577. Contrary to the arguments of counsel for the Claimant, Order 18 Rule 2(4) did not limit time for filing NPO. The 2nd and 3rd Defendants filed their memorandum of conditional appearance on 20th April 2018 before filing their NPO on 24th May 2018. The Defendants do not need leave of court or extension of time to bring the NPO.

 

The 3rd point canvassed by the Claimant for seeking the striking out of the NPO of the 2nd and 3rd Defendants is that the 2nd and 3rd Defendants did not bring to the knowledge of the court the fact that the Claimant had earlier filed a suit. The facts allegedly suppressed by the Defendants relate to the fact of an initial suit filed by the Claimant in this court. According to the facts deposed in the affidavit in support of the motion and the counsel for the Claimant in his submissions, the Defendants deliberately hid the fact from the court in order to deceive the court into believing that the instant suit of the Claimant is statute barred. I do not think this point of the Claimant’s motion is a material point to dwell on in this ruling. The Defendants did not even file any affidavit in support of the NPO. Therefore, there was no means by which such fact would have been put before the court. Let me also say that the fact that the Defendants did not disclose the fact of the previous suit in their NPO is not suppression of fact nor can it be considered to be an abuse of court process. It is the duty of the Claimant who thinks such fact is important in the determination of the NPO to supply same to the court. In any case, the issue of the said previous suit of the Claimant is an issue for consideration in the NPO. I will therefore not pre-empt the NPO at this point by going into the circumstances and legal status of the said initial suit.

 

I have considered all the points raised by the Claimant against the competence of the NPO of the 2nd and 3rd Defendants but I find no merit in them. The Claimant’s motion is hereby dismissed. I will now consider the preliminary objection of the 2nd and 3rd Defendants.

 

The objection of the 2nd and 3rd Defendants is that this suit is statute barred by the effect of Section 2 (a) of POPA.  The 2nd and 3rd Defendants have contended that the Claimant’s cause of action arose on 1st September 2015 when she was retired from service, but she instituted this action on 17th April 2018. It was further argued that since the action was instituted more than 3 months from the date the Claimant’s cause of action arose, the suit was filed in default of Section 2 (a) of POPA and consequently statute barred. From the grounds of the Defendants’ preliminary objection and the submissions of their counsel in support, it is observed that the NPO is predicated on the provision of Section 2(a) of Public Officers Protection Act. Its provision goes thus:

“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 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 provision 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.”

 

This provision is to the effect that any action against a public officer in respect of any act done in pursuance or execution of any Act or law or in performance or default in performance of any public duty or authority must be commenced within 3 months from the date of the cause of action.  Where the suit is not commenced within the period so prescribed, the Claimant’s right of action in respect of that cause will be statute barred and the court will no longer have jurisdiction to entertain the suit. It is a settled principle of law that where a statute prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. See IBRAHIM vs. J.S.C, KADUNA STATE (1998) 12 SC 20; EGBE vs. ALHAJI (1990) 3 S.C (Pt.1) 63; KASANDUBU vs. ULTIMATE PETROLEUM LTD (2008) 7 NWLR (Pt.1086) 274.

 

From the processes filed by the Claimant in opposing the NPO, the Claimant did not dispute the fact that the Defendants are public officers. The Claimant has also not disputed the fact that his cause of action was her retirement from service on 1st September 2015. The Claimant has also not been heard to say her retirement was not an act done by the Defendants in pursuance of their public duty or authority. There is no dispute also that this suit was filed on 17th April 2018. From the facts deposed in the Claimant’s affidavit in support of the originating summons, it is clear to me that the Claimant’s cause of action, which is her retirement from service, arose on 1st September 2015. The Claimant filed this action on 17th April 2018. From the time the Claimant’s cause of action arose and to the time this action was filed was a period of 2 years and 7 months. It means that this suit was filed more than 3 months after the Claimant’s cause of action arose. In view of these obvious facts, the Defendants are therefore entitled to rely on the provision of section 2 (a) of POPA to seek the dismissal of the Claimant’s action.

 

The Claimant has contended however that her suit is not statute barred. The Claimant based her assertion on her claim that this suit was a re-filed suit pursuant to the leave of this court after her earlier suit NICN/ABJ/369/2015 was struck out by the court. The facts deposed in the affidavit in support of the motion filed on 11/6/2018, the affidavit of record filed on 11th June 2018 and the arguments made by the Claimant’s counsel in the written address filed in opposition to NPO, disclose that the Claimant initially filed suit NICN/ABJ/369/2015 on 26th November 2015 but the originating summons was not served on the Defendants until the summons expired.  Upon expiry of the summons, the Claimant filed an application to renew the life span of the originating summons. The application was refused and the suit was struck out with liberty given to the Claimant to re-file the suit. It was on that basis this instant suit was re-filed on 17th April 2018. The point being made by the Claimant in all these processes is that the time when she commenced an action in respect of her cause of action be reckoned to the time when the initial suit was filed. The Claimant’s counsel found in support of the Claimant’s assertion, the recent Supreme Court decision in SIFAX NIG. LTD vs. MIGFO NIG. LTD (supra). As for the 2nd and 3rd Defendants, they contended that Suit No. NICN/ABJ/369/2015 is deferent from the instant suit. The Defendants’ argument is that Suit NICN/ABJ/369/2015 was a completely dead suit when the summons expired. As such, it was not capable of being revived by a fresh action.

 

From the facts put forward by the parties and all the processes filed in respect of the Claimant’s position that her suit is not statute barred in view of her previous suit, I have observed the following: the Claimant initially filed Suit NICN/ABJ/369/2015 by way of originating summons on 26th November 2015 before this court against the same Defendants on the same subject matter and seeking the same reliefs. That originating summons was not served on the 2nd and 3rd Defendants until the life span of the summons expired. After the expiration of the summons, the Claimant brought an application on 6th April 2017 to renew the summons. In a ruling on the motion delivered on 10th April 2018, my learned brother, Hon. Justice S. O. Adeniyi, refused the Claimant’s application and also struck out the suit on account of its expired summons. The Claimant subsequently filed this instant suit on 17th April 2018.

 

It is a fact that the originating summons in Suit NICN/ABJ/369/2015 expired and the application to renew same was refused. The summons was not renewed at any time since the time it expired. What then is the status of suit NICN/ABJ/369/2015 with an expired writ? Order 6 Rules 4 and 5 of the NICN Rules 2017 provide that an originating process is VALID for only 6 months in the first instance but where there were renewals, it cannot be in force for a period longer than 12 months. See also Order 6 Rules 4 and 5 of the NIC Rules 2007 which was the applicable rules of this court at the time suit NICN/ABJ/369/2015 was filed. The implication of these provisions is that an originating process which is not served within 6 months or in the case or renewals, within 12 months, of its issuance becomes invalid and ceases to be in force from the date of its expiration. In the case of Suit NICN/ABJ/369/2015, the originating summons was issued on 26th November 2015, but it was not served 6 months after. It was not renewed at any time thereafter. Consequently, by the 26th day of May 2016, the originating summons in Suit NICN/ABJ/369/2015 had become invalid and void. There was no longer a suit since the date the summons in suit NICN/ABJ/369/2015 expired. In my view, a writ that became void means there was no action in the first place. Therefore, Suit NICN/ABJ/369/2015 is not capable of being considered a valid suit as to be used to determine the date the Claimant filed an action in respect of her cause of action. In order words, Suit NICN/ABJ/369/2015 did not stop or freeze time from running against the Claimant.

 

The Claimant contended further that this court, in the ruling of 10th April 2018, gave her the liberty to re-file the case. What the Claimant appears to say is that she was given leave by this court to re-file the action. Perhaps, that was why she said this suit, being a re-filed suit pursuant to that leave of court, is not statute barred. I have read the ruling of my learned brother, Hon. Justice S. O. Adeniyi, but I cannot find where such leave was given to the Claimant to re-file her action. The words used by my brother in the ruling are these: “The applicant reserves the right to recommence the action where the circumstances permit”. This holding is by no means leave or permission to file a fresh suit. The Claimant was only informed that she has the right to recommence the action if permitted by circumstance. Now, such circumstance will include statute of limitation. The Claimant ought to have taken the prescribed time limit for commencing action against public officers into consideration when filing this action and not to rely on, what I will consider an advice by the court, to say she was given leave to re-file the action outside the limitation period. In any case, it was categorically held in the ruling that Suit No. NICN/ABJ/369/2015 was dead and cannot be resuscitated. This means that the matter cannot be re-filed. Re-filing the same matter, as the Claimant said she has done in this instant case, will mean that suit NICN/ABJ/369/2015 has been resuscitated by the Claimant. She cannot do that. Let me refer to Counsel’s earlier submission on behalf of the Claimant that the ruling of 10th April 2018 remains extant and has not been varied or set aside by any Court. This is a clear indication that the said ruling of my learned brother was never appealed against. This action filed by the Claimant after the ruling in suit NICN/ABJ/369/2015 is a fresh action which is not derived from or linked to the previous suit. In my view, this suit is a fresh suit distinct from Suit NICN/ABJ/369/2015. I hold in the result that the date this suit was filed cannot be reckoned to the date Suit NICN/ABJ/369/2015 was filed.

 

The Claimant’s counsel put heavy reliance on the Supreme Court’s recent decision in SIFAX vs. MIGFO in his arguments that that the Claimant’s action is not statute barred. Learned Counsel for the Claimant submitted that limitation period in respect of the Claimant’s cause of action ceased to run the moment the original suit was commenced on 25th November 2015. This action, being a re-filed suit after the initial suit was struck out, is not statute barred. Let me first say that the facts of the SIFAX case and its circumstances are quite different from the facts and circumstances of this case. In the SIFAX case, the freezing of time for the purpose of limitation of action was used in relation to suits commenced in a wrong court. It was the view of the Supreme Court that when the suit was recommenced in the right court, limitation of time with respect to the cause of action stopped running when the suit was first filed in the wrong court. According to the Supreme Court, where an aggrieved person commences an action within the period prescribed by the statute and such action is subsequently struck out without being heard on the merit, such action is still open to be recommenced and the limitation period will not count during the pendency of the earlier suit. This is because a matter which was struck out remained in the generally cause list of the court at all times until revived.

 

The SIFAX authority will not apply in this case. The circumstance of suit NICN/ABJ/369/2015 is that the originating process expired and the suit became invalid and without life from the date the summons expired. It could only have been revived by an order of renewal by the court. Since the Claimant’s application for renewal was refused, the summons remained as it was – dead and buried since the date of its expiration. Therefore, in view of this different scenario, the SIFAX case cannot be of help to the Claimant.

 

The Claimant’s counsel has further relied on the order of court striking out Suit NICN/ABJ/369/2015 on 10th April 2018. Perhaps, counsel’s position is that since it was struck out only on 10th April 2018, the case has remained on the cause list of the court all the material time and the time remained frozen until the date it was struck out. The fact that suit NICN/ABJ/369/2015 was struck out in the ruling of 10th April 2018 does not mean that the life of the summons extended to that day. The suit was no longer a valid suit capable of remaining on the cause list of the court since the day the summons expired. Therefore, the order striking it out on 10th April 2018 was a mere formality.        

 

The result of the foregoing is that the computation of the time the Claimant instituted her action against the Defendants in respect of her cause of action will be reckoned from the date she instituted this action, which is on 17th April 2018. I have found earlier in this ruling that the Claimant filed this action 2 years and 7 months from the date her cause of action arose. From the period her cause of action arose and the time she filed this action was more than 3 months. Clearly, the Claimant did not commence this suit against the Defendants within the statutorily prescribed 3 months. It is settled law that where a statute prescribes a time limit for the institution of an action, no valid proceedings can be instituted after the time prescribed by the statute. This is because an action brought outside the prescribed period is contrary to the provision of the law and does not give rise to a cause of action. See ELEBANJO vs. DAWODU (2006) All FWLR (Pt. 328) 604; INEC vs. OKORONKWO (2009) All FWLR (Pt. 488) 227 at 247. By the effect of Section 2 (a) of POPA, the Claimant’s suit is clearly statute barred having been filed outside the statutory period. The action is no longer maintainable and this court lacks jurisdiction to continue to entertain it. In the circumstance, the appropriate order to make is to dismiss the Claimant’s suit. Accordingly, this suit is hereby dismissed. No order as to cost.

 

Ruling is entered accordingly.

 

 

Hon. Justice O. Y. Anuwe

Judge