IN THE NATIONAL INDUSTRIAL COURT NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HER LADYSHIP HON. JUSTICE O. A. OBASEKI-OSAGHAE

 

DATE: OCTOBER 21, 2022                                      

SUIT NO: NICN/ABJ/257/2023

 

BETWEEN                                

MR. ADEMOLA ANDREW MOGBOJURI              CLAIMANT/RESPONDENT

             

AND

1. NATIONAL AGENCY FOR FOOD AND

    DRUG ADMINISTRATION & CONTROL

    (NAFDAC)      

2. DIRECTOR GENERAL                                               DEFENDANTS/APPLICANTS                                     

     NATIONAL AGENCY FOR FOOD AND

     DRUG ADMINISTRATION & CONTROL

     (NAFDAC)

                                                                                                                                          

REPRESENTATION

Ajibola Bello for the Claimant, with Blessing Adekoya, Vanessa Chukwuyenum.

I. Ighorhiohwunu for the Defendants.

 

RULING

Introduction and claims

[1] The Claimant filed this Complaint against the Defendants on 21^st September 2023 seeking the following reliefs:

a. A Declaration that the compulsory retirement of the Claimant by the Defendants, prior to the Claimant attaining the age of 60 or 35 years in service, is in contravention of the Public Service Rules which requires same to be in public interest.

b. A Declaration that the compulsory retirement of the Claimant from employment by the Defendants is unlawful, null and void, same having been arrived at following a disciplinary procedure which lasted for thirty-five months in breach of the provision of the Public Service Rules which requires disciplinary procedure to be completed within six months.

c. A Declaration that the compulsory retirement of the Claimant from employment by the Defendants is unlawful, null and void, same having been arrived at following a disciplinary procedure which is in breach of the Claimant’s right to fair hearing, the Defendants having failed to accord the Claimant adequate time and facility to defend allegations levelled against him.

d. An Order of the Honourable Court setting aside the purported letter of compulsory retirement issued by the Defendants to the Claimant dated 11^th November 2020.

e. An Order of the Honourable Court directing the Defendants to pay to the Claimant the aggregate sum of N13, 872,003.34k (Thirteen Million , Eight Hundred and Seventy-two Thousand, Three Naira, Thirty-four kobo) at a monthly rate of N533, 538. 59K (Five Hundred and Thirty- Three Thousand Five Hundred Thirty- Eight Naira Fifty- Nine Kobo) being arrears of salaries due to the Claimant from the month of November, 2020 when the Claimant was unlawfully retired, to December, 2022 when the Claimant would have validly retired from the service of the Agency.

f. An Order of the Court directing the Defendants to pay all terminal benefits accruable to the Claimant including the consolidated salary bonus which was denied on the basis of the purported compulsory retirement.

g. An Order of the Court directing the Defendants to pay the disengagement allowance, which equates to 5% of the Claimant’s annual basic salary which is to the tune of N332, 123.154K (Three Hundred and Thirty-two Thousand, One Hundred and Twenty- Three Naira, One Hundred and Fifty- Four Kobo) at a monthly salary rate of N533,538.59K (Five Hundred and Thirty-Three Thousand Five Hundred Thirty- Eight Naira, Fifty Nine Kobo) as specified in section 130104 of the Public Service Rules.

h. An Order of the Court directing the Defendants to issue an official letter apologizing to the Claimant and retracting the letters of suspension and compulsory retirement illegally issued to the Claimant and to publish same in two national dailies.

i. An Order of the Court directing the Defendants to pay the sum of N20,000,000.00K (Twenty Million Naira) to the Claimant being general damages for the distress and truncation of source of livelihood arising from the wrongful, unlawful and illegal suspension and compulsory retirement of Claimant’s employment.

j. An Order of this Honourable Court directing the Defendants to pay to the Claimant the sum of N2,000,000.00k (Two Million, Two Hundred Thousand Naira) only being the cost of litigation incurred for this suit.

k. An Order of the Honourable Court directing the Defendants to pay 10% (Ten per cent) interest per annum on the sums awarded to the Claimant as post-judgment interest following failure of the Defendants to pay the awarded sums within 20 days following the delivery of judgment until final liquidation of the judgment sum by Defendants.

[2] The Defendants entered a conditional appearance, filed their statement of defence on 8^th March 2024, and a Notice of Preliminary Objection on March 11, 2024 praying for an order(s) dismissing or striking out the suit for want of jurisdiction. The Objection is brought pursuant to Section 2(a) of the Public Officers Protection Act, Cap P41 LFN, 2004, National Agency for Food and Drug Administration and Control Act (NAFDAC) Cap N1 LFN, 2004 and Section 19 Part 1 & 11 of the Fifth Schedule of the Constitution of the Federal Republic of Nigeria (1999) as amended. The grounds upon which the Objection is brought are as follows:

1)    The action as constituted is statute barred and a gross abuse of Court processes.

 

2)    The Defendants/Applicants are public officers, whose service comes under the provisions of Public Officer Protection Act.

3) The action of the Defendants upon which this action is filed took place on 11^th November 2020 and this action was filed on 21^st September, 2023, a time outside the period prescribed by law.

4)    A similar matter between same parties had been competently adjudicated upon, whereby judgment was delivered on July 27, 2023. The action as constituted is a gross abuse of court processes and goes against the doctrine of Res Judicata. There must be an end to litigation.

[3] The Objection is supported by an affidavit sworn to by Adekunle Taofeek litigation officer on March 11, 2024 to which is annexed three exhibits. In opposing the objection, the Claimant filed a counter affidavit and a written address on April 2, 2024. The parties adopted their written addresses and made oral submissions.

Defendants/Applicants submissions

[4] The Defendants submitted two issues for determination:

1. The Defendants are Public Officer, whose services come under the provisions of Public Officers Protection Act. The cause of action in this matter arose on 11^th November, 2020 and this suit was filed on 21^st September, 2023. Has the 3 months (90 days ) provided by Public Officers Protection Act to institute an action against the Defendants not elapsed?

2. The Claimant had filed a similar case against the same Defendants in the same court, judgment was delivered after hearing of the case. The Claimant had compiled with the terms of the judgment, should the principle / doctrine of Res judicata not be applied to make an end to litigation?

[7] Learned Counsel in arguing issue one submitted that the Defendants are Public Officers relying on Section 19 Parts I and II of the 5^th Schedule to the 1999 Constitution, Federal Government of Nigeria v Zebra Energy Limited (2002) LPELR 172 SC Pg 19 Paras C-D. He submitted that the cause of action arose when the Claimant was compulsorily retired on November 11, 2020 by the Defendants as evidenced in the processes filed by the Claimants while this suit was filed on September 21, 2023. Counsel submitted that by virtue of section 2 of the Public Officers Protection Act the Claimant was expected to take legal action to redress his grievance against the Defendants within 90 days from the date of occurrence of the alleged wrong citing JFS Investment Ltd v Brawal line ltd & ors (2010) LPELR 1610 (SC) for the guiding principles on limitation of actions.

[8] Learned counsel submitted that where a suit is not commenced within the period prescribed by statute, the Claimant’s right of action will be statute barred and the Court will have no jurisdiction to entertain the suit citing Ibrahim v JSC [1998] 12 SC 20, Egbe v Alhaji (1990) 3 SC (Pt 1) 63, Elebanjo v Dawodu (2006) All FWLR (PT 328) 604.  He further submitted that  an action  brought outside the prescribed period contrary to the provision of law  does not give rise to a cause of action citing Yau-Yau v APC (2023) All FWLR (PT 1206) 1 at 23-24 Para G-D. He submitted that the matter as constituted is caught by the POPA and should be dismissed or struck out.

[9] Learned counsel on issue two stated that the Claimant had filed a similar case against the Defendants in the same court and judgment was delivered. He argued that the reliefs filed in the earlier suit were similar and argued that the doctrine of res judicata should be applied to bring an end to litigation. He cited Caraway ventures integrated Nig. Ltd v Jakana & ors (2022) LPELR 58219 (CA) for the essential elements of the doctrine, an earlier decision on the issue, a final judgment on the merits, and the same parties or parties in privy with the original parties. It was his submission that where a competent court has decided a matter and ended in judgment, neither of the parties may re-litigate that issue by formulating a fresh claim citing Cole v Jibunoh (2016) LPELR -40662 (SC) 54, A-E, Oleksandr v Lonestar Drilling Co Ltd (2015) LPELR 24614 (SC) 49-50. He submitted that this suit is an abuse of the process of court citing Nyako v UBA plc (2019) LPELR-46587(CA) and urged the Court to dismiss or strike out this case with cost.

Claimant/Respondents submissions

[10] The Claimant submitted two issues for determination;

a. Whether from the facts and circumstances surrounding the instant suit of the Claimant, same not being similar with suit no. NICN/ABJ/46/2021 struck out by the Court, is caught up by the principle of Res Judicata?

b. Whether the provision of Section 2(a) of the Public Officer Protection Act 2004 is applicable in the case of the Claimant/ Respondent.

[11] Learned Counsel in arguing issue one submitted that for res judicata to apply to a case, the conditions precedent for the application must be established citing Cole v Jibunor (2016) LPELR-40662 (SC), Makun v FUT Minna (2011) LPELR- 15514 (SC). He stated that the earlier suit filed by the Claimant was struck out by the court and  that the Claimant can reinstitute that said matter given the fact that the matter was not determined on its merit for want of jurisdiction citing Benbok Ltd v First Atlantic Bank Plc (2007) LPELR-9003 (CA). He submitted that an order striking out the case gives the Claimant the right to re-institute the action citing Habib Bank (Nig) Plc v Lodigiani (Nig) Ltd (2010) LPELR-4228 (CA). He submitted that the argument that this action is res judicata is unfounded in law and fact.

[12] Learned counsel on issue two submitted that the recent position of law on the application of Public officers Protection Act (POPA) is that it no longer applies to cases of recovery of land, contract of service and claim for work and labour done and cited Obasanjo v Wuro Bogga (Nig) Ltd (2023) 2 NWLR (Pt 1868) 253. He submitted that there exists a contract of service between the Defendants and the Claimant; and that the POPA does not apply where the injury of the Claimant is a continuing one, where there is bad faith, malice or no legal justification for the action of public officer citing A-G Rivers State v A-G Bayelsa State & Anor (2013) 3 NWLR (Pt.1340) 123 at 144-150, Hassan v Aliyu (2010) 17 NWLR (Pt 1223) 547 at 560. It was his contention that the Defendants acted outside the scope of their powers when the Claimant was compulsorily retired prior to attaining the age of 60 years or 35 years in service. He submitted that the suit is not statute barred and that the Court has jurisdiction to entertain same, and cited Adebiyi (Delock Associate) v National Institute of Public Information (2013) LPELR-22628 (CA). He urged the Court to dismiss the objection o for lacking merit with substantial cost.

 

 

Decision

[13] In determining this Preliminary Objection, I have carefully considered the affidavit evidence, the originating processes, the submissions of counsel and authorities relied on. Jurisdiction is the authority of the Court to adjudicate over the questions that gave rise to the cause of action. It is a fundamental and threshold issue being the life-blood and bedrock of all trials. Without jurisdiction, the trial will amount to an exercise in futility and a nullity. See Okolonwamu v. Okolonwamu (2019) 9 NWLR (Pt 1676) 1 at 21, Para A; GTB v Toyed (Nig) Ltd (2016) LPELR-4181 (CA), Odom v. P.D.P (2015) 6 NWLR (Pt 1456) 527 at 548, Paras C-D. A Court is only competent to entertain a case when the subject matter of the case is within its jurisdiction, there is no feature in the case which prevents the Court from exercising its jurisdiction, and the case comes before the Court initiated by the due process of law upon the fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v Nkemdilim (1962) NSCC 374 at 379-380, Oloriode v Oyebi (1984) 1 SCNLR 390 Duru v Yunusa (2010) 10 NWLR (Pt. 1201) 80 at 101-102, Hope Democratic Party v Obi (2011) 12 MJSC 67.

 

[14] The jurisdiction of the Court is challenged on the two grounds, the limitation law and the doctrine of res judicata. I will begin with the limitation law because the issue of an action being statute barred is fundamental to the determination of a case, see Yau-Yau v APC (2024) 8 NWLR (Pt 1941) 403 SC. The effect of a limitation law is that legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. It removes the right of action leaving the Claimant with an unenforceable claim, see Aba v The Board Of Directors NIPOST & Anor [2023] 5 NWLR (Pt 1878) 475 SC, Yau-Yau v APC supra. In deciding whether a case is statute barred or not, the Court only has to look at the originating process alleging when the wrong was committed which gave rise to the cause of action and comparing that date with the date the Complaint (in this instance) was filed. If the date on the originating process is beyond the period allowed by the limitation law, the action is statute barred, see Abdullahi v Loko (2023) 6 NWLR (Pt 1881) 445, Karshi v. Gwagwa (2022) 9 NWLR (Pt 1834) 139, JFS Investment Ltd v Brawal Line Ltd & Ors (2010) LPELR 1610 (SC), Elabanjo v Dawodu [2006] 6-7 SC 24, Yau-Yau v APC supra.

 

[15] A cause of action is said to be statute barred if in respect of its proceedings it cannot be brought because the period laid down by the limitation has elapsed. See Egbe v Adefarasin [1987] 1 NWLR (Pt 47) 1 at 20, Udoh Trading Coy Ltd v Abere [2001] 11 NWLR (Pt 723) 114, Forestry Research Institute of Nigeria v Gold [2007] 11 NWLR (Pt 1044) 1 at 18, Ethiopian Airlines v Afribank Nig Plc [2006] 17 NWLR (Pt 1008) 245. The Defendants submit that this suit is caught by the limitation in Section 2(a) of the Public Officers Protection Act CAP P41 LFN 2004 and as such the action is statute barred. The Public Officers Protection Act applies to both natural and artificial persons, see Ibrahim v Judicial Service Commission [1998] 14 NWLR (Pt 584) 1, Nwaogwugwu v President FRN [2007]1 ALL FWLR (Pt 389) 1327, Abubakar v Governor of Gombe State [2002] 17 NWLR (Pt 797) 533, section 18 (1) Interpretation Act CAP 123 LFN 2004 for the definition of public officer, section 19 Part I and II of the 5^th Schedule of the 1999 Constitution as amended. On the authorities, the Defendants are Public Officers who are covered by the provisions of the Public Officers Protection Act in the exercise of their public or official duties.

 

[16] Section 2(a) of the Public Officers Protection Act is reproduced as follows:

2. Where an action, prosecution or other proceeding is commenced against any person or any act done in pursuance or execution of any Act or Law or of any public duty or authority or in respect of any alleged neglect or default in the execution of such Act, law, duty or authority, the following provisions shall have effect:

(a) The action prosecution or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of; or in case of a continuance of damage or injury, within three months next after the ceasing thereof.

 

 The cause of action arose on 11^th November 2020 when the Defendants compulsorily retired the Claimant from service. This suit was filed on 21^st September 2023. I find that this is outside the 3 months period of accrual of cause of action.

[17] Learned counsel to the Claimant has submitted that by the decision of the Supreme Court in Obasanjo v Wuro Bogga Nig Ltd supra (decided 17^th June 2022) the Public Officers Protection Act is no longer applicable to contracts of service and that this case is not caught up by the limitation law. Learned counsel to the Defendants has cited and relied on Yau-Yau v APC supra (decided 31^st March 2023) a later decision of the Apex Court. The rule is that where a Court is faced with two conflicting decisions of the Apex Court, the decision that is later in time operates as a bar and represents the correct position in law, see Osakue v F.C.E. Asaba (2010) 10 NWLR (Pt 1201) 1 SC, State v Alli (2020) 18 NWLR (Pt 1755) 69, Mkpedem v Udo (2000) 9 NWLR (Pt 673) 631. The decision of the Supreme Court in Aba v The Board Of Directors NIPOST & Anor [2023] 5 NWLR (Pt 1878) 475, (decided on 2^nd December 2022) supra, reaffirmed the application of statute of limitation to contracts of service as earlier decided by the Supreme Court in Micheal Idachaba & Ors v University Of Agriculture, Makurdi & 4 Ors (2021) LPELR- 53081 (SC). The lower Court is bound to follow the later/most recent decisions of the Apex Court in Aba v The Board Of Directors NIPOST supra, Yau-Yau v APC supra, and the Court of Appeal decision Oko-Jaja v FCSC & Ors (2022) LPELR-57627 (CA) 35-39 Paras B.

[18] Learned counsel to the Claimant has argued that this suit falls within the exceptions to the limitation; that there is a continuance of damage and the Defendants acted outside the scope of their powers. The limitation law deprives the court of jurisdiction to hear an action outside the laid down period, see Muazzam v Bichi [2010] 12 NWLR (Pt 1209) 508 at 516, Osakue v Federal College of Education (Technical) Asaba & 2Ors [2010} 10 NWLR (Pt 1201) 1 at 32; and recognizes some exceptions. By the authorities the exceptions are where the injury is a continuing one,   bad faith, malice, or no legal justification. These are not caught up by the Limitation.  See A-G Rivers State v A-G Bayelsa State & Anor [2013] 3 NWLR (Pt 1340) 123 at 144-150, Hassan v Aliyu [2010] 17 NWLR (Pt 1223) 547, Osun State Govt v Dalami (Nig) Ltd [2007] 9 NWLR (Pt 1038) 66, Kwara State C.S.C. v Abiodun [2010] 11 NWLR 52 at 112 – 114, Ofoboche v Ogaja Local Govt [2001] Vol. 8, MJSC 153.

[19] The Claimant by this action is challenging his compulsory retirement by the Defendants. The Supreme Court in A-G Rivers State v. A-G Bayelsa State & Anor [2013] 3 NWLR (Pt. 1340) 123 at 144 – 150 has laid down the test on ‘continuance of damage or injury.’ The Apex Court held that the case for the deprivation of allocation, which the plaintiff was entitled to every month and same has not ceased, was “a situation continuance of damage or injury which has not ceased”; and so the defence of the Public Officers Protection Act would not avail the 1^st Defendant who had raised it. In other words where an allocation which comes periodically, (like monthly salary and allowances) is deprived a plaintiff State (like salary and allowances deprived to an employee), then there is continuing damage or injury for which the Public Officers Protection Act or Law will not apply. In this sense, for the ‘continuing injury’ exception to apply, the employee would need to be in employment; for otherwise, the claim that the deprivation continues would not stand.

[20] The Claimant is not in service having been compulsorily retired. The definition of the phrase “continuance of the injury” by case law authorities is the continuance of the “act which caused the injury” and not the injury itself. I rule that this case does not fall within the exception of continuance of injury/damage. Furthermore, the Defendants have joined issues in the pleadings and a close look reveals that the exception of acting outside the scope of their power, and no legal justification does not avail the Claimant, see Rahamaniya United (Nig) Ltd v Min FCT (2021) 17 NWLR (Pt 1806) 481.  

[19] On the issue of res judicata, the affidavit evidence reveals that the Claimant had filed a similar Complaint in Suit No: NICN/ABJ/46/2021 (exhibit C) against the 1^st Defendant on 11^th February 2021, and the 1^st Defendant had filed a counter claim. The matter proceeded to trial and Judgment was delivered by this Court. The decision of the Court in respect of the Claimant’s complaint is at paragraphs 41 and 42 of the judgment and is reproduced:

[41] The failure of the Claimant to comply with the statutory and mandatory condition precedent (of the service of pre-action notice) on the Defendant renders this suit as presently constituted premature, and incompetent, see International Tobacco Co Plc v NAFDAC supra, Nigerian Port Plc v Oseni supra, Shaibu v. NAICOM [2002] 12 NWLR (Pt. 780) 116.

[42] This suit is hereby struck out for incompetence and want of jurisdiction. Costs of N100,000.00 awarded the Defendant on the main suit.

[20] The Claimant’s earlier suit was against the 1^st Defendant only and it was not determined on the merits even though the matter went to full trial. The issues in dispute in the earlier case and this instant case are the same. However, there is a 2^nd Defendant joined in this action. The doctrine of res judicata is not applicable in this case, see Makun v FUT Minna (2011) LPELR- 15514 (SC). The Claimant chose to file this fresh action and it is now caught up by the limitation law being outside the three months period of accrual of cause of action. The position of the law is that where a Claimant who might have had a legitimate cause of action brings such an action outside a limitation period created by statute, the action is statute barred and he loses his right to enforce the cause of action by Judicial process because the period of time laid down by the limitation law for instituting such action has lapsed, see Etim v. Inspector General of Police [2000] FWLR (Pt 21) 767. The effect of an action that is statute barred is that it renders the action barren, sterile and incompetent, see Yau-Yau v APC supra; Aba v The Board Of Directors NIPOST & Anor supra, Karshi v. Gwagwa (2022) 9 NWLR (Pt 1834) 139, Micheal Idachaba & Ors v University Of Agriculture, Makurdi & 4 Ors (2021) LPELR- 53081 (SC), Oko-Jaja v FCSC & Ors (2022) LPELR-57627 (CA) 35-39 Paras B.

[21] I hold that this action is statute barred. The Court lacks jurisdiction to entertain this matter. This suit is hereby dismissed. Each party is to bear its own costs.

 

Ruling is entered accordingly.

                                                    ______________________________

                                                       Hon Justice O. A. Obaseki-Osaghae