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His Lordship, Hon. Justice Sanusi Kado of the National Industrial Court of Nigeria, Abuja Judicial Division on Monday 24th September 2018 in a ruling dismissed suit against The Director General, National Youth Service Corps & 3 Ors (defendants)for being statute barred in accordance with the Public Officers Protection Act.
The claimant Thomas Unugboje in this suit approached this court via complaint dated 25th day of November 2014 and prayed among others; A DECLARTION that the Defendants acts of allowing the claimant to continue to act as the Kebbi State coordinator in batch A NYSC orientation camp in Kebbi State after taking the decision to compulsorily retire him with effect from 3rd of March, 2014 and subsequent payment of Claimant’s entitlement camp duty in Kebbi State and salary for the months of March, April and May 2014 did nullify the purported letter of compulsory retirement from service dated 7th March 2014. And AN ORDER reinstating the Claimant immediately to his position and should also be paid all his salaries and entitlement from the date his salary was stopped until judgment is given with 20% interest on such sum of money and 10% on such sum of money from when judgment is given until the Defendants comply with the judgment.
Upon being served with the originating court processes commencing this suit, the defendants filed three motions on notice for preliminary objection. The 1st and 2nd defendants/applicants, prayed for an order of this Honourable Court dismissing this suit for want of jurisdiction and competence. On the grounds that the suit is statute barred as same is not instituted within the time statutorily allowed to seek redress. And, the suit is premature as the claimant/respondent did not comply with the provision of section 20 of the National Youth Service Corps Act, Cap N48, Laws of the Federation of Nigeria, 2004.
According to defendant looking at the processes filed by the claimant/respondent the cause of action in this matter arose on 6th day of April 2014, when the claimant/respondent received his letter of compulsory retirement dated 7th day of March 2014. The filing of this suit on 25th day of November 2014, means that this suit was filed seven Month nineteen days after the accrual of the cause of action. Therefore, this suit having been brought outside the three Months allowed by law, the suit is statute barred.
The third defendant through their counsel Celestine O. Ovoke, Esq. filed the another motion on notice for preliminary objection prayed for An Order of this Honourable Court striking out the name of the 3rd defendant (Head of Civil Service of the Federation) from this suit for want of reasonable cause of action.
Furthermore, the counsel to the claimant, Anthony Itedjery, Esq has raised the issue in its claims that there is a continuing damage by the defendants for refusal to pay him and other Claimants in the sister suits their salary without justification or any legal bases. Counsel contended that the statement of facts and prayers d and e of the claimant these are act still in operation till date. Counsel referred to Section 2 (a) of the Public Officers Protection Act, by this provision this suit falls within exception to the general rule as there is continuance of damage or injury.
After attentively listened to all the Counsel for the parties in their oral submissions before the Court and read the written addresses of Counsel and the authorities cited therein, His Lordship Hon. Justice Sanusi Kado expressed thus;
“My holding that there is no continuance of damage or injury regarding compulsory retirement is predicated on the fact that the statement of facts did not show that there was another compulsory retirement, a part from that which was handed over to the claimant/respondent on 6/4/14.
“However, the Claimant has contended that payment of salary up to May means nullification of retirement this is not correct, if there has been any nullification the Claimant would not have asked this Court to order his reinstatement back to his job.
“If it was taken the date for purpose of determining the period of limitation is June, 2014, this suit is still statute barred. And I so hold.
“I agree with the submission of the Applicants that issues of bad Faith, malice, acting outside colours of office or duties is not a relevant consideration at this stage of preliminary objection those issues are questions for resolution if the suit is not statute barred. But, having found that the suit is statute barred for this Court to embark on resolution of those issues will. Amount to academic exercise which a court of law should not embarked upon as it is moot and exercise in futility.
“Consequently, this suit is hereby dismissed for being statute barred.” Hon. Justice kado declared.
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