NICN - JUDGMENT
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA
ON TUESDAY 26TH DAY OF FEBRUARY, 2019
BEFORE HIS LORDSHIP: HON. JUSTICE SINMISOLA ADENIYI
SUIT
NO: NICN/KD/44/2017
BETWEEN:
ABUBAKAR AUDU ESQ………APPLICANT/RESPONDENT
AND
1. LOCAL GOVERNMENT SERVICE
COMMISSION,
KADUNA STATE
2. MINISTRY OF LOCAL GOVERNMENT
AFFAIRS, KADUNA STATE
3. KADUNA SOUTH LOCAL GOVERNMENT
4. THE EXECUTIVE GOVERNOR,
KADUNA STATE
………… DEFENDANTS/APPLICANTS
R U
L I N G/ J U D G E M E N T
This action was commenced by Complaint filed on 22nd September,
2017, wherein the Claimant/Respondent claimed against the Defendants/Applicants
the following reliefs:
1.
Declaration that ab-Initio, the disciplinary
procedure adopted by the Defendants against the Claimant did not only infringe
his fundamental right to fair hearing but was wrongful, null and void.
2.
Declaration of this Honourable Court that the
findings, conclusion and recommendation arrived at by the Defendants’
disciplinary action against the Claimant, were unfair, unjust, incompetent,
wrongful, null and void.
3.
An Order of this Honourable Court, setting
aside the purported retirement from service of the Claimant vide the Defendants’
letter dated 10th day of February, 2017 on the ground that same is
ultra-vires, improper, incompetent, pre-judicial, null and void and of no
effect whatsoever.
4.
Declaration that the content of the said
letter dated 10th January, 2017 written or caused to be written by
the Defendants to the Claimant was intentionally malicious libelous, defamatory
and exposed the Claimant to shame, disgrace, ridicule scorn and same lowered
his dignity in the estimation of the right thinking public.
5.
A consequential order of this Honourable
Court re-instating the Claimant back to the employment and services of the Defendants.
6.
An Order of this Honourable Court directing
the Defendants jointly and severally to pay all the Claimants accrued salaries,
promotion and other entitlements effective from the date of the purported
retirement i.e. 30th January, 2017 till the day of Claimant’s
reinstatement.
7. An Order
of this Honourable Court directing the Defendants jointly and severally to pay
the Claimant, the sum of N20,000,000
(Twenty Million Naira) as general
damages for the libelous statement written and or caused to be written against
the Claimant.
2. Upon being served with the
Originating processes thereafter, the 1st – 4th Defendants
filed their Joint Statement of Defence on 13/02/2018, whereby they denied the entirety of the Claimant’s
claims. The Defendants also filed the instant Notice of Preliminary Objection
on the same date wherein they prayed for an order striking out this suit in limine for lack of jurisdiction. The
preliminary objection is premised on the ground that the Claimant’s action is
statute barred by virtue of Section 2(a)
of the Public Officers (Protection) Law (POPL), Cap 126, Laws of Kaduna State,
1991.
The learned
Claimant’s counsel, in reaction to the preliminary objection, filed a written
address on the 2nd March,
2018.
3. I had proceeded to
examine the preliminary objection and the legal arguments canvassed by the
respective learned counsel in support and to oppose the same as the case may
be. I should state that I had carefully considered the totality of the
objection and that I had also taken due benefits of the totality of the written
and oral arguments canvassed by the respective learned counsel. I should be
permitted to state that I shall make specific reference only to the submissions
of the respective learned counsel that I consider as very salient to the
determination of the various issues raised as I deem necessary.
4. The case of the Claimant, as
disclosed in the Statement of Facts
is clear. He was a public servant working with the 3rd Defendant as
a Chief Legal Officer until 30th January, 2017 when he was retired
after thirteen (13) years of service. The Claimant alleged that throughout the duration
of his service with the Defendants, especially the 1st Defendant, he
had never been negligent in his duties, neither was he reprimanded nor queried
until December 2016 when he received query relating to the garnishee of the 3rd
Defendant’s account.
He further alleged that prior to the
issuance of the said query; he had been orally invited by an Investigation
Committee set up by the 2nd Defendant in September 2016 to enquire
into the events that resulted to the garnishee of the account of the 3rd
Defendant. The Claimant further contends that after he had replied the query,
the Defendants did not invite him to any disciplinary committee to defend the
allegations made against him. The Claimant argued that as a senior public
servant, the Defendants as statutory bodies did not abide with the process of
disciplining him; consequently he served pre – action notices on the Defendants on 18th
April, 2017.
The Claimant further alleged that he
approached the 4th Defendant to intervene but he did not receive any
positive response to his request. Being aggrieved by the actions of the
Defendants, the Claimant commenced the present action and sought reliefs which
I had earlier stated.
5. The learned counsel for the Defendants,
H.
A. Ladan Esq., had hinged her arguments principally on the ground that
the limitation law, that is the Public Officers (Protection) Law (POPL) (supra),
caught up with the instant suit, in that the Claimant commenced the action
after the time permitted for filing an action against the acts of a public
officer complained of had lapsed. The Defendants’ learned counsel further
argued that in the present case, the wrong the Claimant alleged to have been
done against him by the Defendants or the cause of action, as captured in his Statement of Facts, related to
his purported retirement on 10/02/2017, by which he urged the Court for
re-instatement and for other reliefs from the Defendants, but the Claimant did
not file the instant suit challenging his retirement until 22/09/2017.
Citing the cases of Ibrahim Vs Judicial Service Committee [1998] 12 SCNJ 255 @ 272
-273, Jibo Vs Ministry of Education & Ors [2016] LPELR 40616,
the learned Defendants’ counsel submitted that the action of the 1st
Defendant against the Claimant was carried out in execution of its public duty.
She further submitted that the word “public officer” under the POPL (supra)
extends to artificial persons and public agencies like the 1st Defendant
covered under the protection of the POPL.
6. Learned Defendants’ counsel further
submitted that once a stipulated time for bringing an action has elapsed, the
right of action becomes extinguished by effluxion of time and in that instance,
it is not proper for the Court to infer or conclude from the pleadings that the
protection afforded the Defendant by law is vitiated by malice or bad faith; at
that stage, the Court is only obliged to decide whether the action is
maintainable and not whether the Defendant is liable. In support of her
propositions, learned counsel referred to the cases of Hassan Vs Aliyu [2010]
All FWLR (Pt 539) 1007; Fajimolu Vs University of Ilorin [2007] All FWLR
(Pt 350) 1361; Egbe Vs Alhaji [1990] 3 SC (Pt 1) 63; Egbe Vs
Adefarasin [1985] 1 NWLR (Pt 3) 549.
The Defendants’ learned counsel
submitted that the Claimant’s case is caught up by the provision of Section
2(a) of the POPL having been instituted outside the three (3) months allowed by
the Law that is, from the date of the accrual of the cause of action. She
further submitted that the service of pre- action notices on the Defendants
does not stop the time for commencing an action by the Claimant from running.
In conclusion, learned Defendants’
counsel urged the Court to hold that the Claimant’s action is statute-barred
and to strike out same for lack of jurisdiction.
Learned counsel for the Claimants further argued that
POPL admits some exceptions which include actions for continuous injury. The learned counsel further
contended that when the issue of continuous injury has been raised, the
Claimant should be given the opportunity to call witnesses and ventilate his
grievances rather than shut the Claimant out. In support of his propositions,
learned counsel cited inter –alia the
cases of Vassilev Vs Paas Industries
Nig. Ltd & 2 Ors [2000] All FWLR (Pt 19) 418; Adelaja & 2 Ors Vs
Alade & Anor [1999] 4SCNJ 225; A. G Rivers State Vs A. G Bayelsa
State [2012] 7SCNJ 74
8. Now, it would seem that from the
submissions made by both counsel, they are not in doubt that the issue of a
Court’s jurisdiction is the bed rock of a case. It is now settled
that the issue of jurisdiction is fundamental to the question of the competence
of the Court adjudicating. It is an exhibition of wisdom to have the issue of
jurisdiction or competence determined before embarking on the hearing and
determination of the substantive matter. This is the reason the issue of
jurisdiction takes precedence over all other issues whenever it arises. Iwuji & Ors Vs Governor of Imo State
& Ors 2012 LPELR 22824; Dangote General Textile Products & Ors
Ltd Vs Hascon Associates Nig Ltd & Anor 2013 LPELR 20665
The simple and narrow question to be
determined in the instant case is whether the provision of Section 2 of POPL (supra)
is applicable to the facts of the instant case; and if so, whether, in the
circumstances, the action is statute-barred and liable to be dismissed.
Section 2(a) of the Public Officers (Protection) Law
(POPL), Cap 126, Laws of Kaduna State, 1991 in view provides as follows:
“2. Where any action, prosecution or other proceeding is
commenced against any person for any act done in pursuance to or execution or
intended execution of any Law or of any public duty or authority or in respect
of any alleged neglect or default in the execution of any such Law, duty or
authority, the following provisions shall have effect:
(a)
The action, prosecution or proceeding
shall not lie or be instituted unless it is commenced within (3) three months
next after the act, neglect or default complained of, or in case of a
continuance of damage or injury, within (3) months next after the ceasing
thereof.…”
The provision of Section 2 of the Law, in
focus in the instant case, has been given abundant interpretation in a long
line of decided cases to leave no one in doubt as to its correct application.
Learned counsel for the Defendants has elaborately cited some of these well
know judicial authorities.
9. To resolve the question of whether the instant
suit instituted by the Claimant against the Defendants is statute barred,
regard being had to the provisions of Section 2(a) of the POPA, the issue
of who is a public officer must be resolved before the limitation period will
apply. In the instant case, there does not seem to be any disputes as to the
fact that the Defendants involved in this suit are public officers.
It must however be underscored that the essence
of a limitation law is that the legal right to enforce an action is not a
perpetual right but a right generally limited by statute. Where a statute of
limitation prescribes a period within which an action should be brought, legal
proceedings cannot be properly or validly instituted after the expiration of
the prescribed period. Therefore a cause of action is statute-barred if legal
proceedings are not commenced in respect of same because the period laid down
by the limitation law had lapsed. An action which is not brought within the
prescribed period offends the provisions of the law and thus could not give
rise to a cause of action.
10. The
yardsticks to determine whether an action is statute-barred are:
1. The date when the cause of action accrued.
2.
The date of
commencement of the suit as indicated in the writ of summons or Complaint (as
in the instant case).
3. Period of time prescribed to bringing an action to
be ascertained from the statute in question.
The
general position of the law is that time begins to run for the purposes of the limitation law
from the date the cause of action accrues. See Ajayi Vs. Adebiyi [2012] 11 NWLR (Pt. 1310) 137; Sulgrave Holdings
Inc. Vs. FGN [2012] 17 NWLR (Pt. 1329) 309.
12. Permit at this point to address the
issue canvassed by the learned Claimant’s counsel that an affidavit must be
filed supporting a preliminary objection where the preliminary objection is
based on facts and law.
With
due respects to learned Claimant’s counsel, this submission is misconceived. A
preliminary objection may or may not be supported by affidavit. It all depends
on what is being objected to. Where the objection is based on law, an affidavit
may not be necessary, but if it is based on the facts, an affidavit is
mandatory. However, where a preliminary objection is raised on point of law and
relevant facts upon which the objection is based are before the Court, there is
no need for additional affidavit evidence to be filed. It is only where there
are conflicting assertions as to any fact relating to the objection, or where
the facts are not before the Court; that such an objection ought to be
supported by an affidavit which would ensure that all relevant materials are
placed before the Court for a proper determination of the objection. See Amah Vs Nwankwo [2007] 12 NWLR (Pt 1049) 552; AG Federation
Vs ANPP [2003] 18 NWLR (Pt 851)182; Odeniran Vs NPA [2004] 7 NWLR
(Pt 872) 230; Alhaji Lai Mohammed Vs Chief Afe Babalola SAN [2011] LPELR
8973
13. My
understanding of the law from the authorities cited above is that, a
preliminary objection need not be supported by an affidavit so long as enough
material is placed before the Court on which it can judiciously pronounce on
the preliminary objection. I am fortified by the decision of Edozie,
JCA (as he then was) in the case of Okoi
Vs Ibiang [2002] 10 NWLR (Pt 776) 445 at 469-470, where His Lordship
cited and relied on the decision of Achike, JCA (as he then was) in the
case of Bello Vs NBN [1992] 6
NWLR (Pt 246) 206 at 219 where His Lordship held thus:
“Certainly, there is no hard
and fast rule that a preliminary objection need be supported by an affidavit so
long as enough material is placed before the trial court on which it can
judiciously pronounce on the preliminary objection. Where the alleged offending
writ of summons ex facie contains the relevant information against which an
objection is being raised, it seems to me that the necessity to additionally
rely on affidavit evidence is uncalled for.”
In
the case in hand, it does not appear to me that the Defendants needed to file
an affidavit, sufficient materials has been placed before the Court on which it
can judiciously pronounce on the preliminary objection. And I so hold.
14. Now, in dealing with the instant case, one of
the fundamental questions to answer is: When did the cause of action accrue? Or
may be a collateral question to be answered first is what is meant by cause of
action? It is trite that a cause of action arises the moment a wrong is done
to the Claimant by the Defendant and
for the purpose of limitation of time for actions, time begins to run from the
moment the cause of action has arisen, that is when the facts that are material
to be proved to entitle the Claimant to success have happened. See AG Bayelsa State Vs AG Rivers State
[2006] 12 SC 134; Agbonika
& Anor Vs University Of Abuja [2014] All FWLR (Pt 715) 335 at 340; NNPC Vs Emelike [2018] LPELR
44180
15. The learned Claimant’s
counsel had argued that the injury suffered by the
Claimant is an injury of a continuing nature not
caught up by the POPL. I do not see any continuance of injury in the facts of
the Claimant’s case; retirement of the Claimant is a once and for all time
action and the Defendants action does not constitute continuing injury or
damage contemplated in Section 2 (a) of the POPL. Flowing from the judicial
authorities cited above vis- a -vis the facts and circumstances of this suit it
shows clearly that the cause of action accrued on 10th February,
2017 when the Claimant received his letter of retirement. Therefore, this Suit
filed on 22nd September, 2017 (seven months after the cause of action accrued)
is statute barred as it did not comply with Section 2(a) of the POPL
(supra). And I so hold.
16. The reason tendered by the Claimant
for the undue delay in instituting the action is that he had employed reconciliatory
platform by appealing to the 4th Defendant for the issues in dispute
to be resolved. It is trite that negotiation or reconciliatory moves by the
parties is not an excuse for failure to comply with the requirements of the Law.
A person to whom a right of action has accrued is to institute an action
against the other party so as to protect his interest or right in case the
negotiation fails. If, as in this case, the negotiation does not result in a
settlement or in an admission of liability, the law will not allow the time
devoted to negotiation to be excluded from the period which should be taken
into consideration for the determination of the question of initiating an
action within a prescribed period. See Lahan Vs The Attorney General Western
Nigeria (1976) 39 WNLR 660; Eboigbe
Vs N.N.P.C (1994) NWLR Pt 347 @ Pg 649; Local Government Service
Commision, Ekiti State & Anor Vs Olamiju 2014 LPELR 22469
In my view, negotiation with a view to
settling a matter out of court cannot operate as a good and substantial reason
for failure to file within the prescribed period, since a Claimant is entitled
to withdraw his Originating process in the event of a successful negotiation.
The best cause for a person to whom a right has accrued is to institute an action
against the other party so as to protect his interest or right in case the
negotiation fails. The Claimant herein, during the period of negotiation would
have lost nothing if the suit had been filed within the time prescribed by Law.
17. Furthermore, I agree with the submission of the
learned Defendants’ counsel that the only way the validity or illegality of the
act of a public officer would come up for consideration is where an action was
filed within the prescribed three (3) months period, anything short of that is
bound to fail. See the case of Egbe Vs Adefarasin (supra), where the
Supreme Court held as follows:
“It is on the facts clear that Appellant has no
cause of action against 2nd Respondent having not brought the action within the
prescribed period of three months from the accrual of the cause of action.
Again where the Defendant has raised an unanswered plea of protection under the
Public Officers Protection Law on the uncontested facts: as 2nd
Respondent has done in this case, there is absolutely no basis for prying into
the conduct of such a Defendant which gave rise to the action. The Court of
Appeal need not have gone into the question of whether malice was relevant
consideration in determining the liability of the 2nd Respondent.”
Once again in the case of Egbe
Vs Alhaji (1989) 1 NWLR (PT. 128) 546 AT 584,
the Supreme Court per NNAMANI, JSC (as he then was) was
rather straight forward on the issue when His Lordship clearly puts it across
thus:
”It does appeal to me that the words used in
this legislation are plain and ought to be given their ordinary meaning. It is
indeed the first rule of interpretation of statues that statutes are to be
construed in their ordinary and natural meaning of the words……. It is also a
rule of interpretation to assume that, the legislature means what they have
actually expressed…. there is no bad faith or good faith contained therein
expressly. What seems to standout so vividly are the words, “shall not lie
unless commenced within three months” it seems to me that this is more a
provision of limitation and is only of defence in the sense that a person sued
after three months can rely on it to have the suit dismissed. In my view, the
mandatory provision shall not lie indicates that the action cannot be maintained
or cannot take off unless brought within three months. In my view, it is only
when such action can be maintained, i.e. where there is a cause of action that
the question of whether the action complained of was done in the execution
of a public duty can be canvassed. To give an interpretation which allows
examination of whether the action complained of was done in the execution of a
public duty with reference to whether would mean that a public officer can even
be sued several years after his retirement for an action which he carried out
in the execution of his public duty. That to my mind would completely destroy
the main protection which the statue gives a public officer.”
This principle was adopted by the Court
of Appeal in the case of Nnaji &
Ors Vs Iwueke 2018 LPELR 44043,
where it held the view that the words “shall not lie” is a mandatory provision
which indicates that the action cannot be maintained or cannot take off unless
brought within three months. Applying the above
principle to the instant case, it is my view that what the Court is obliged to
decide at this stage is, whether the action is maintainable and not whether the
Defendants are liable; it is not proper for the Court at this stage to conclude
or infer from the pleadings that the protection afforded the Defendants by the
Law is unlawful or has been vitiated by malice or bad faith.
18. Arising from the foregoing therefore, I cannot
help but agree entirely with learned Defendants’ counsel on the fact that the
Public Officer’s Protection Law ought to avail the Defendants as the Claimant’s
cause of action is statute barred having been instituted several months after
the statutory three (3) months. Therefore, it would be needless waste of time
under the scheme of things to pry into the
conduct of the Defendants which gave rise to the action. And I so hold.
19. One of the principles of the statutes
of limitation is that a person who sleeps on his right should not be assisted
by the Courts in an action for recovery of his property. A person who is
aware of his rights but allows them to go stale should not be allowed to revive
the said stale action to the detriment of an adversary. It is similar to the
equitable principle that equity aids the vigilant and not the indolent and it
prevents a party from acting unconscionably See Nwadiaro V Shell Petroleum
Development Company Ltd (1995)
NWLR Pt 150 322; Shell Petroleum Development Company of Nigeria Ltd V Amadi (2010)
13 NWLR Pt 1210 32.
The philosophy behind the Limitation Laws
was stated by Tobi, JCA (as he then was)
in Merchantile Bank
(Nig) Ltd V Feteco (1998)
3 NWLR (Pt 540) 143 at
156-157 thus:
"A statute of
limitation is designed to stop or avoid situations where a plaintiff can
commence an action anytime he feels like doing so, even when human memory would
have normally faded and therefore failed. Putting it in another language, by
the statute of limitation, a plaintiff has not the freedom of the air to sleep
or slumber and wake up at his own time to commence an action against a defendant.
The different statutes of limitation which are essentially founded on the
principles of equity and fair play will not avail such a sleeping or slumbering
plaintiff...."
20. In the final analysis, my decision
is that the filing of the Complaint seven (7) months after the cessation of the
act complained of clearly offends Section 2 (a) of the Public Officers Law. I find in the result that this Court lacks jurisdiction to
entertain this suit. The same shall be and is accordingly dismissed.
I make no order as to costs.
SINMISOLA O. ADENIYI
(Presiding
Judge)
26/02/2019
Legal representation:
S.
D. Jibril Esq.
for Claimant
Halima
A. Ladan Esq. for
Defendants