IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: MAY 9, 2019 Suit No: NICN/YEN/18/2018
DR (MRS) ERADAMEJENWA ROSELINE OGUNTOYE (Nee Eru)
PETROLEUM TRAINING INSTITUTE (P.T.I)
E. Anuwanta (Miss) Esq for the Claimant.
Defendant not represented.
The Claimant instituted this action vide a complaint dated 7th day of May, 2018 and filed on the same date. The claimant’s claims against the Defendant are as follows:
a. A DECLARATION that the Claimant is a retiree of the Defendant by reason of the fact that the Claimant meritoriously served in the establishment of the Defendant from 2nd October, 1986 (when the Claimant was employed in the services of the Defendant) and retired from the services of the Defendant on 24th April, 1997 having regard to the Claimant’s letter dated 24th April, 1997 and titled : RETIREMENT NOTICE by which the Claimant applied to the Defendant to retire from the service of the Defendant which was done in accordance with the Civil/Public Service Rules and other enabling laws in that behalf.
b. A DECLARATION that the Claimant, who is a retiree of the Defendant by reason of the fact that the Claimant meritoriously retired from the services of the Defendant on 24th April, 1997 is entitled to all her retirement benefits appertaining to the Claimant in her capacity as a retiree of the Defendant as provided for by laws under the Civil/Public Service Rules and other enabling laws in that behalf.
c. AN ORDER OF MANDATORY INJUNCTION compelling the Defendant to compute, assess and pay, with immediate effect, all the Claimant’s retirement benefits from 24th April, 1997 when the Claimant retired from the service of the Defendant till date.
d. 21% monthly interest on the said sum standing to the credit of the Claimant as her retirement benefit from 24th April 1997 when the Claimant retired from the service of the Defendant till date and until the date judgment is delivered in this suit.
e. 10% monthly interest on the said sum standing to the credit of the Claimant as her retirement benefit from the date judgment is delivered until the judgment debt and other incidental costs are fully paid by the Defendant as provided or either by the rules of this Honourable court or the judgment of this Honourable court.
N50,000,000.00 (Fifty Million Naira Only) being general damages for the cost of litigation, the emotional, psychological, official, social and incidental humiliation inconveniences suffered by the Claimant in the hands of the Defendant as a result of the disappointing and frustrating acts of the Defendants.
The Claimant alongside filed Statement of Claim, Witness Deposition on Oath, List of Witness and List of Documents to be relied upon in the cause of trial.
THE DEFENDANT NOTICE OF PRELIMINARY OBJECTION
The Defendant filed a Notice of Preliminary Objection Dated the 31st day of May, 2018 and filed on the 7th day of June, 2018. The application is brought under the inherent jurisdiction of this Honourable court. The Defendant is praying for the following:
a. AN ORDER dismissing this suit as the court lacks the jurisdiction to hear and determine same.
b. AND FOR SUCH ORDER OR OTHER ORDERS as this Honourable court may deem fit to make in the circumstance.
The following are the grounds upon which the application was made:
a. That the Claimant’s claim is for a purported retirement benefits which borders on a contract of employment, which said benefits allegedly became due on the 24th April, 1997.
b. That the statutory period for which the Claimant was to bring this action has elapsed, hence the action has become statute barred.
c. That by the provisions of law, the claimant’s right of action has been extinguished having brought this action outside the statutory period.
In support of the application, the defendant/applicant filed a written address. in the written address the applicant formulated a sole issue for determination as follows:
“Whether this action is statute barred having regards to the circumstances of this case viz-a-viz the pleadings of the Claimant?”
Learned counsel answered the above question in the affirmative. He argued that jurisdiction is the live wire of all actions. A trial without jurisdiction amounts to a nullity and a precious waste of the judicious time of the court. Once it is apparent to any party that the court may not have jurisdiction, it can even be raised viva voce. Referred to NDIC VRS CBN (2002) FWLR (PT. 99) 1121 PG 1039 PARAS A – C RATIO 3. Learned counsel submit that the law is settled that once the issue of jurisdiction is raised, same must be considered first before any other issue. The law is well settled that a legal right to institute an action is not a perpetual right but a right generally limited by statute. After the period which the applicable statute provides, no legal proceedings can lie, such a right having been extinguished by law. Referred to OYENOKI VRS NIGERIA POSTAL SERVICE (2010) FWLR (PT. 504) PG 1572 @ 1589 PARAS A – B, RATIO 5. Learned counsel contend that it is settled principle of law that in determining jurisdictional issue, the court is bound to look at the subject matter of the claim as reflected in the writ of summons and statement of claim (in this instance, the Statements of Facts), evidence need not to be led especially where the issue of limitation of action is raised. Referred to the case of OSUN STATE VRS DALAMI (NIG.) LTD (2007) 3 SCNJ PG 28 @ 30 RATIO 3.
Learned counsel urged this Honourable court to look at the claim of the Claimant to determine what the claim is all about. He submit that whether the claim will succeed or not or whether it has been proved or not is immaterial at this point in determining jurisdiction, but it is what the subject matter of the claim is all about that is paramount in determining jurisdictional issue grounded or based on limitation of action as emphasized in the case of OSUN STATE VRS DALAMI (NIG) LTD (SUPRA). Learned counsel argued that in the instant case, the claimant is alleging that she retired from the services of the defendant on the 24th April 1997 and 8th May 1997 and that by virtue of her purported retirement she is entitled to retirement benefits effective from the date of the said retirement which she also claimed that the Defendants refused to pay her. Referred to paragraphs 18 & 23 of the statement of facts and reliefs 1, 2, 3 of the statement of facts. Learned counsel submit that the law is trite that in determining whether an action is statute barred the court looks at the writ of summons and the statement of claim of the claimant alleging when the cause of wrong was committed which gives the party complaining a cause of action by comparing that date and the date on which the writ of summons in the action was filed. If the date on the writ is beyond the period allowed by limitation law, then the action is statute-barred. A cause of action include any fact relied upon by the claimant resulting from the act of the defendant which gives rise to justiceable complaint. Referred to OYENOKI VRS NIGERIA POSTAL SERVICE (2010) FWLR (PT. 504) PG 1572 @ PG 1575 RATIO 4 & PG 1583 PARAS E – F.
Learned counsel argued that from the pleadings of the Claimant, the complaint of the claimant is simply as to her retirement benefits which she alleged has been due from the defendant. The question is when did the said cause of action in this case accrues? The law is settled in the case of OYENOKI VRS NIGERIA POSTAL SERVICE (SUPRA) as to when a cause of action accrues. Referred to GOODWILL CO. LTD VRS CALABAR CEMENT CO. LTD (2010) FWLR (PT. 544) PG 34 @ PG 39 RATIO 8. Learned counsel contend that it is important to take a perusal at the Claimant’s Complaint and Statement of Facts so as to determine when the cause of action as to her retirement entitlements accrues. Referred to Paragraphs 18 and 23 of the Statement of Facts. From the above averments on the claimant’s statement of facts, the alleged retirement took effect from 24th April, 1997 and on the other hand she also alleged that the said retirement took effect from 8th May, 1997 as stated in paragraphs 18 & 23 of the statement of facts and that following her purported retirement, the defendant was expected to pay her retirement benefits effective from the said dates of her purported retirement. Learned counsel submit that the cause of action of the Claimant is as to her retirement benefit which allegedly took effect from the date (s) of her purported retirement and the said cause of action clearly accrued on the date(s) the purported retirement became effective i.e 24th April, 1997 & 8th May, 1997. Learned counsel urged the court to put these said dates of the accrual of the cause of action i.e 24th April, 1997 & 8th May, 1997 side by side with the dates on the complaint filed before this Honourable court and compare to see whether this action was filed outside the statutory period. As a matter of paramount importance the defendant is undoubtedly a public officer. Referred to ALHAJI ALIYU IBRAHIM VRS JUDICIAL SERVICE COMMITTEE, KADUNA STATE (1998) 64 LRCN PG 5044 @ PG 50 79 where the Supreme Court defined who is a public officer is.
Learned counsel contend that in finding out whether this action was filed outside the statutory period prescribed by law, it is imperative that the provisions of law as it relates to action against public officers like the Defendant be stated. The inquisitive question will be, what is the statutory period within which an action can lie against a public officer like the Defendant in this case? Learned counsel referred to section 2 of the Public Officers Protection Act Cap P41, Vol. 14, Laws of the Federation, 2004. Learned counsel argued that an action against a public officer ought to be commenced within three (3) months from the date of the alleged cause of action complained of. He humbly refer the court to look at its records to see the date on the complaint filed by the claimant and urged the court to compare same with the date of the accrual of the cause of action and the court will see that this action was filed outside the statutory period of three months as stipulated by law. The said complaint was filed on the 7th of May, 2018, while her purported retirement took effect i.e 24th April, 1997 & 8th May 1997, this action was brought about 21 years after the accrual of the cause of action.
Learned counsel submit that having regards to the provisions of section 2 of the Public Officers Protection Act. Cap P41, Vol. 14, Laws of the Federation, 2004 the Claimant had 3 months from the date when the cause of action arose to institute this action against the Defendant who is a public officer. He argued that the statute of limitation removes the right of action, right of enforcement, right to judicial relief and leaves the Claimant with a bare and empty cause of action unworthy of being enforced. Referred to EGBE VRS ADEFARASIN (1987) 1 NSCC 1 PG 17 LINE 10. Learned counsel submit that it is settled law that where a court finds that the claim or suit of a Claimant is statute barred the proper and deserving order to make is that of a dismissal of the entire suit, without more. Referred to the case of SULGRAVE HOLDINGS LTD VRS FGM (2013) FWLR (PT. 659) PG 1050 @ 1071 PARAS F – A RATIO 5.
Finally, learned counsel submit that the Claimant having not brought this action within the statutory period of three (3) months has eroded her rights to the reliefs sought and as such this Honourable court is robbed of the jurisdiction to try this matter and ought to be dismissed.
The Claimant/Respondent has not responded to this application filed by the Defendant/Applicant despite the fact that same process was served on her.
I have carefully read and understood all the processes filed by the Learned counsel to the Defendant/Applicant canvassing both on Points of Law and of Facts. In other to effectively and effectually determine this application I formulated a lone issue for determination as follows:
a. Whether the Claimant’s action is statute barred thereby robbing this court of the jurisdiction to entertain same.
On the lone issue on whether the Claimant’s action is statute barred thereby robbed this court of the requisite jurisdiction to entertain same, for the avoidance of doubt and for the sake of clarity, Section 2 (a) of the Public Officers Protection Act Cap P41 Laws of the Federation, 2004 provides as follows:
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance 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 provision shall have effect –
(a) The action, prosecution, or proceeding 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…”
From the wordings of this Act any action sought to be commenced against a public officer, same must be brought within three (3) months next after the accrual of the cause of action. And in other to ascertain when a cause of action arose, the Court should look in to the Statement of Claim or the Complaint as the case may be, for the date when the cause of action arose and the date when the action was filed. That is to say time begins to run for the purpose of Limitation Law from the date the cause of action accrues. See BRITISH AIRWAYS PLC Vs. AKINYOSOYE (1995) 1 NWLR (PT. 374) 722 at 724; SHELL PET. DEV. CO. (NIG) LTD Vs. FARAH (1995) 3 NWLR (Pt. 382) 148 at 156; AGI Vs. ENO (2010) 5 NWLR (Pt. 1188) PG 626 at PG 641 PARAS B-C.
It is of legal importance to note that a legal right to enforce an action is not perpetual right, but a right generally limited by statute. Therefore, a cause of action is statute-barred if legal proceedings can not be commenced in respect of same because the period laid down by the Limitation Law or Act had elapsed, see ADEOSUN Vs. JIBESIN (2004) 14 WRN 106. And where a statute of limitation prescribes a period within which an action should be brought; legal proceedings cannot be validly or properly instituted after the expiration of the prescribed period. Thus, an action instituted after the expiration of the prescribed period is said to be statute barred. See OSUN STATE GOVERNMENT VS. DANLAMI NIG. LTD (2007) ALL FWLR (Pt. 365) 438 S.C.
Note that the rationale behind the Limitation Law, limitation of action is the principle of law requiring the plaintiff (claimant) as a matter of obligation to seek prompt remedy for the breach of his right in a court of law within the time limited by the law otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing an action by the law. So where the law provides for the bringing of an action within a prescribed period (like the Public Officers Protection Act) in respect of a cause of action, accruing to the Plaintiff (Claimant), proceedings shall not be brought after the period prescribed by law; except the Claimant can show that the case comes within any of the laid down exceptions. See DR. CHARLES OLADEINDE WILLIAMS Vs. MADAM OLAITAN WILLIAMS (2008) 4 – 5 SC (Pt. II) 253. Public Officers are not immune from suit under the Public Officers Protection Act. However, the law is that such a suit against a public officer must be instituted within a stipulated time or period provided by the statute, otherwise it becomes stale or statute-barred. See THE MINISTER OF PETROLEUM & MINERAL RESOURCES & ANOR Vs. EXPO-SHIPPING LINE (NIG) LTD (2010) 12 NWLR (Pt. 1208) 26 SC.
The general purpose of Section 2 (a) of the Public Officers Protection Act as stated by the Supreme Court in the case of IBRAHIM Vs. JUDICIAL SERVICE COMMISSION (1999) 14 NWLR (Pt. 584) is that for any section to avail any public officer protection then the following conditions must be fulfilled:
(a) It must be established that the person whom the action is commenced against is a public officer or a person acting in execution of a public duties within the definition of the Act; and
(b) The act done by the person in respect of which the action is commenced must be an act done in pursuance of or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law duty or authority.
Furthermore, the law is settled that a cause of action arises on the date the breach of duty occurs or when all the facts which are material to the success of the claim have occurred. And an action is commenced on the date the application for the issuance of the writ or other originating process is made and the necessary fees paid. See WOHEREM VS EMERUWA (2004) 6 – 7 SC 161 AT 168 PARA 40. And the yardstick for determining whether an action is statute barred include the following:
(a) The date when the cause of action accrued.
(b) The date of commencement of the suit as indicated on the Writ of Summons or other Originating Process.
(c) The period of time prescribed for bringing the action to be ascertained from the statute in question.
See AJAYI VS ADEBIYI (2012) 5 SCNJ 458 at 481.
Having said all these by the provisions of Section 2 (a) of the Public Officers Protection Act Cap P41, Laws of the Federation , 2004 an action against any public officer (like the Defendant) can not be maintained three months after the accrual of the cause of action.
From the pleadings filed by the Claimant in her Statement of Facts, she retired from the services of the Defendant on the 24th April, 1997 but which the Defendant acknowledged to take effect on the 8th May, 1997. See paragraphs 18 and 23 of the Statement of Facts, and reliefs 1, 2 and 3 of the complaint. Therefore, from these facts as contained in the Originating Processes one can conveniently say that the cause of action accrued on the 8th day of May of 1997 when the retirement of the Claimant became effective. And by looking at the complaint it is apparent that the Claimant instituted this action on the 7th day of May, 2018, that is to say this action was instituted twenty one years less a day after the accrual of the cause of action.
While I am in total support of the submissions made by the Learned counsel to the Defendant/Applicant that the cause of action aroused sometime in the month of May, 1997 which is more than the period allowed by the Limitation Act to institute an action against a public officer, But by looking at the provisions of Section 2 (a) of the said Limitation Act an aggrieved party like the Claimant can bring an action against a public officer in case of a continuance of damage or injury within three months next after the ceasing thereof. In other words, if the damage or injury is in continuance, then a Claimant can institute an action outside the three months period provided by the statute. And none payment of salaries or pension which occurs monthly can be termed as a continuous injury.
Note that, despite these also, the law recognized some very exceptions to this general rule. In other words, Limitation Law is not applicable under certain exceptions. In A.G RIVERS STATE VRS A.G BAYELSA STATE & ANOR (2013) 3 NWLR (PT. 1340) AT PG 148 – 150 PARA F – A; where the Supreme Court outlined or recognizes some very important exceptions as follows:
a. In case of continuance of damage or injury, an action can be brought outside the statutory limitation period.
b. Where the person relying on the Limitation Law acted outside the colours of his office or outside his statutory constitutional duty.
See also the decision of the Supreme Court in the cases of INEC VRS OGBADIBO LOCAL GOVERNMENT (2016) 3 NWLR (PT. 1488) PG 205; DR CHARLES OLADEINDE WILLIAMS VRS MADAM OLAITAN WILLIAMS (2008) 4 – 5 SC (PT. 11) 253.
Furthermore, more recently the Supreme Court decision on section 2 of the Public Officers Protection Act Per ARIWOOLA JSC held that the Act does not apply to contracts of service. In NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION & 2 ORS VRS AJIBOLA JOHNSON & 10 ORS (2019) 2 NWLR (PT. 1656) 247 AT 270 – 271, His Lordship at page 271 said:
“I have no slightest difficulty in holding that the appellants are not covered by the provisions of the Public Officers Protection Act as to render the respondent’s action statute barred. In sum, I hold that the Learned justices of the court below are right in holding that the appellants do not enjoy the umbrella of Public Officers Protection Law in the contract of service involving the respondents…”
From the foregoing, the act of the Defendant of failure to pay the Claimant her retirement benefits amounts to continuous injury each month and falls within the exceptions provided by the law. In view of the foregoing facts as enumerated above, it’s my ardent belief that the action of the Claimant is not statute barred as such this court has the requisite jurisdiction or jurisdictional competence to preside over this matter. I resolved the lone issue for determination in favour of the Claimant. The preliminary objection is hereby dismissed. I order the Claimant to proceed and open her case.
Ruling is hereby entered accordingly.
HON. JUSTICE BASHAR A. ALKALI