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Lagos –His Lordship, Hon. Justice NCS Ogbuanya of The National Industrial Court of Nigeria,sitting in Lagos on Friday 8th February 2019 in a judgment dismissed the suit filed by GNR. Idris Abdulrahman (claimant) against The Nigerian Army and The Chief of Defence staff (defendant) for being caught up by the limitation provisions of Public Officers Protection Act (POPA).
By an Amended Statement of Facts granted on 20th March 2018, the Claimant sought among others; An Order directing the Defendants to pay the Claimant the sum of N732,000 due to the Claimant as accrued monthly salaries as at November 2017.
An Order directing the Defendants to compute and render an account of all the monies due to the Claimant as allowances, pensions, and emoluments from August 1997 to November 2017.
Likewise, An Order directing the Defendant to pay to the Claimant his due and outstanding allowances, pensions and other emoluments from August 1997 to November 2017.
The crux of the Applicants’ counsel’s submission is that the Claimant was a member of the Nigerian Army enlisted in 1980. He was in service receiving all his entitlements until 1997 when he was given 3 days pass but after the 3 days he did not come back, and his whereabout was unknown until 19th October 2011, when he resurfaced and stated that on his way outside the Barracks, got entangled with some vigilante group, which led to a Remand Order issued against him by a Magistrate’s Court whereupon he spent over 7 years in Kirikiri Prison and was released on 1st November 2004.
The Defendants also reacted with a Notice of Preliminary Objection, challenging the jurisdiction of the court on the ground that the suit is Statute barred, having been caught up with the prescribed three month- time limit to commence an action against Public Officer, pursuant to Public Officers Protection Act, Laws of the Federation 2004 on the ground that the Claimant was deemed convicted and dismissed in July 1997, and that action was not commenced until 22 November 2017.
Counsel pointed that even counting from that period of his release, he only approached this court on 22nd November 2017. Counsel contended that apart from the statutory period, the Claimant ceased being subject to ‘service law’, being a ‘deserter’ effective August 1997, by virtue of S.173 Armed Forces Act, Cap.A20 LFN 2004.
On his part, claimant Counsel submitted that having not set up a Board of Inquiry to inquire into the Claimant’s absence and not shown any report that declared the Claimant, AWOL , before deeming him a deserter and convicted by the Court Marshall, clearly shows the bad faith exhibited by the Defendants, which would rob them of protection by POPA.
The Defendants contended that by operation of Military Law, the Claimant has been declared a deserter having been Away Without Leave (AWOL), and deemed to have been convicted by the Court Marshall when his 3 days Pass expired and after some period he was still not back to duty.
Counsel submitted on point of law that any person who has not been in communication and heard from for 7 years is presumed dead.
After careful evaluation of all the processes filed, and the submissions of the learned Counsel from both sides. The Court presided by Hon. Justice NCS Ogbuanya expressed thus;
“The Claimant again, seems to overlook the fundamental point in issue here, which is the time lag between when the Claimant was released from detention in November 2004 and when he instituted this action in November 2017 (a period of about 13 years), given that he also spent 71/2 years in detention (1997-2004) without any communication to anybody, including family members.
“Claimant’s testimony that his Unit has been disbanded also supports the imperative of the need for his quick visit to the Defendants’ Army Headquarters.
“Such quick visit would have aided his possible reposting and review of his pitiful circumstances, even if adverse decision had been made in his absence, otherwise, a quick suit would be instituted to redress his situation.
“Claimant rather alluded to poverty as reason for his not pursuing legal action since his release from detention, but offered no explanation as to why he did not quickly visit the Defendants ‘Army Headquarters to incident his issues. It would not cost him much to pay such visit.
“Of note is the cost of litigation in the relevant court (NICN), which is very low and ought not to arm-twist the Claimant or any assisting person.
“Thus, such action should have normally been commenced latest in February 2005, but it was commenced in November 2017, a period of about 12 years after the cessation of the cause of action.
“I, therefore, find that the suit is caught up by the limitation provisions of S.2 Public Officers Protection Act (POPA). Accordingly, this suit is statute-barred. I so hold.
The court dismissed the suit in its entirety for being statute barred.
