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Abuja --His Lordship, Hon. Justice Sanusi Kado of the National Industrial Court of Nigeria, Abuja Judicial Division on Monday 22nd October 2018 in a ruling dismissed preliminary objection in part filed by FED. CIVIL SERVICE COMMISSION challenging the jurisdiction of the court to hear the suit brought by MR. EBIKEME AKPOKEME and directed the defendant to file defence within fourteen days from the date of service on him of the claimant’s processes.
On 14/8/17, the Applicant took out an Originating Summons seeking against the defendants among others; A declaration that the removal of the Claimant from the services of the 2nd Respondent with effect from 1st March 2016 by the 1st Respondent’s letter of 1st Match 2016 withdrawing the 1st Respondent letter of approval of 15th December 2015 is wrongful, null and void and of no effect in that the process for the transfer and absorbment of the claimant into the main stream of the Federal Civil Service had long commenced prior to the circular of the 1st defendant of 22nd October 2013 on which the refusal of transfer of the claimant was based. A declaration that the claimant retired as the chief confidential Secretary, salary grade level 14 from the service of the Ministry of Niger Delta Affairs in September 2015.
Likewise, An order of Court enforcing the payment of salaries and allowances of the claimant by the 2nd Respondent from 1st day of September 2011 till the claimant retired in September of 2015. An order directing the Defendants to pay the claimant forthwith all arrears of his salaries, emoluments and/or entitlements from the 1st day of September 2011 when his salary was stopped by the Delta State Civil Service Commission until the time he retired from service in September 2015.
The grouse of the Claimant is that his salary was stopped by Delta State Civil Service after his secondment to Ministry of Niger Delta Affairs and that it is the letter of withdrawal dated 1st March 2016 by the Federal Civil Service Commission that had truncated his absorption into the Federal Civil Service to enable him to receive his entitlements. The Claimant stated in his affidavit that he ought to have retired in September 2015 but his salary was stopped in 2011.
Upon being served with the Originating Summons commencing this suit, the 1st Defendant/Respondent, vide notice of preliminary objection sought for an order dismissing this suit for lack of jurisdiction as the suit is statute barred and wrongly commenced by way of originating summons.
Counsel submitted that the respondent action is statute barred by virtue of section 2(a) of the Public Officers (Protection) Act, for having been instituted outside the three months period allowed for bringing an action against public officers.
Counsel submitted that since this action was improperly commenced, it is incompetent. Consequently, this Honourable Court lacks the competence or jurisdiction to adjudicate over same.
Michael Eleymi, Esq; counsel for the Respondent submitted that the essence or effect of the public officer’s Protection Act is to extinguish the cause of action if it is commenced after the stipulated period, which is the three months but subject to the exception provided for in section 2(a) of the Act.
It is the submission of Counsel that from the facts and circumstances of the claimant’s case, he is still very much in service resuming duty to the office of the 2nd Defendant and as such he has not contravened the public officer’s Protection Act, as such the suit is not statute barred.
After reviewing the argument of both parties, the Court Presided by Hon. Justice Sanusi Kado expressed thus;
“The Respondent commenced this suit on 14/8/17. From the 1/3/16 when the letter of withdrawal of exhibit 11 was issued to the 14/8/17 when this suit was instituted is a period of one year five Months. This clearly shows that this suit was not commenced within the period of three Months as required by law taking into consideration the fact that there is only one withdrawal vide exhibit 14, then there is no continuance of damage or injury that will enable the operation of the exception of section 2(a) of the Public Officers (protection) Act. In view of the foregoing, reliefs a, b, d, and f are caught by the statute of limitation.
“However, on reliefs’ c and e, being claims on payment of work done is not caught by the statute of limitation. I so hold.
“In the final analysis, the Applicant’s notice of preliminary objection succeeds in part. For avoidance of doubt, the Order of the Court is Reliefs a, b, d, and f as contained in the Originating Summons are caught by section 2(a) of the Public Officers (Protection) Act, and are hereby dismissed.
“The Respondent is to convert his Originating Summons to Complaint in so far as claims c and e are concerned. This should be done within fourteen days of this order. The defendant shall in turn file his defence within fourteen day from the date of service on him of the claimant’s processes.”
