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His Lordship, Hon. Justice Isaac J. Essien of the National Industrial Court of Nigeria, Enugu Judicial Division on Thursday 26rd April in a ruling dismissed suit against Nigerian Army for being statute barred in accordance with the Public Officers Protection Act.
By a compliant dated the 20th day of January, 2017 and filed on the 23rd day of January, 2017 the claimant PTE NNAEMEKA ONYEBARACHI claimed against the Nigerian Army jointly and severally as among others; A declaration that the claimant’s summary trial and dismissal by the 1st and 2nd defendants from the Nigerian Army on 31st August, 2007 is unlawful unconstitutional and of no legal effect; An order re-instating the claimant into the Nigerian Army and promoting him to his appropriate rank and An order mandating the 3rd defendant to pay the plaintiff all entitlement due to him from 31st August, 2007 till date.
The defendant entered a defence and filed their statement of defence on the 20th February, 2017. In response, the claimant also filed a reply to the statement of Defence on the 22nd May, 2017.
The defendant also filed a Notice of Preliminary objection on the 22nd May, 2017. The preliminary objection seeks an order dismissing this suit for being statute barred in that it was filed outside the period limited by statute that the cause of action leading to this suit arose in 2007 and this suit was filed on 8th October, 2012 after a period of 5 years.
In his written submission, the claimant counsel argued that it is not in all cases that once a party is out of time in bring an action within 3 months that he would be barred or he would lost the right to institute the action. Counsel argued that this present action falls within the exceptions in S.2 of the Public Officers protection Act
After reviewing the argument of the parties, the Court Presided by Hon. Justice Isaac J. Essien expressed thus;
“I have carefully read through the affidavits filed by the respective counsels. I have also considered their written submissions as well as their oral adumbration and the authorities cite by counsels.
From the provision of the above quoted Act. It is very clear that the limitation law as shown in section 2 of the Public Officers Protection Act is a very strict law in its application. Except where the circumstances fall under the exception strict application of the provisions of the Act is envisaged.
On the strength of the above authority it is the decision of this court that the cause of action of the claimant in this suit arose on the 31st August, 2007 when the claimant was dismissed from the service of the 3rd defendant/applicant. When the claimant filed this present action on the 8th August, 2012 he was already out of time within which to bring this action.
The law is also settled that the period spend on negotiation does not count or affect the calculation of limitation time or period.
Its on the strength of the above authority that this court is inclined to dismiss this suit. Accordingly this suit is hereby dismissed.
