IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP HONOURABLE JUSTICE I. S.GALADIMA
Dated: 20th May 2019
SUIT NO: NICN/OW/33/2018
ULUNMA GLADYS AMAEFULE
ABIA STATE POLYTECHNIC, ABA
HOD DEPARTMENT OF ACCOUNTANCY, ABIA STATE POLYTECHNIC
ABIA STATE COMMISSIONER FOR EDUCATION
ATTORNEY GENERAL OF ABIA STATE
I. O. Odigbo for the Claimant/Respondent.
E.C. Iroanya for the Defendants/Applicants.
The Defendants/Applicants had on the 10/12/2018, filed a notice of preliminary objection seeking the following orders:
1. An order striking out and or dismissing this suit in limine, as there is no reasonable cause of action in this suit and this suit is incompetent, speculative & borders on gold digging.
2. An order granting substantial costs in the sum of N2,000,000 against the claimant/respondent for bringing this frivolous suit.
On the following grounds that:
1. The honourable court lacks the jurisdiction to hear and determine this suit/claim of the claimant as no reasonable cause of action has arisen
2. The claimant lacks the competence to have the matter brought before the honorable court at the time as the action is speculative, borders on gold digging as the proper/necessary parties are not before the court.
3. This action is statute barred for being contrary to the Public Officers Protection Act
4. Non- compliance with pre-action notice.
In the accompanying written address, one issue was identified for determination as follows: whether or not this Honourable Court can exercise jurisdiction to entertain, hear and determine this suit even when-(a) no cause of action has arisen, the claimant having not joined the necessary/proper parties to this suit (b) by reason of the fact this action is statute barred in violation of the Public Officers’ Protection Act 2004 and (c) for non compliance with the requirement of pre-action notice before bringing this action?
Arguing this sole issue, counsel relied on the cases of Udoh v Abere (2001) 11 NWLR (pt 723) 114, Oloriode v Oyebi(1984) 1 SCNLR 390, and Obeta v Okpe(1996) 9 NWLR (pt 573), and stated that this suit is incompetent and the court lacks jurisdiction to determine it, because it discloses no reasonable cause of action; it is statute barred, and no pre-action notice was served on the defendants. In all, counsel concluded that this court has no jurisdiction to entertain this suit, as all the interested parties in order to give the claimant locus standi are not present.
Expectedly, the claimant on 24/1/2019 opposed this objection by filing a counter-affidavit of 9 paragraphs. In the accompanying written address, one issue was also formulated as follows: whether from the grounds of the defendants’ preliminary objection, a legal issue warranting the striking out of this suit has been established?
According to claimant’s counsel the Public Officers Act(POPA) (Amendment) Bill 2016 has amended the POPA of 2004 by extending the timeline of three months in section 2 (a) to three years for victims of public officers’ acts to seek redress. Counsel submitted that the cause of action in this suit is the claimant’s indefinite suspension, and all the necessary parties for the resolution of this suit were joined by the claimant. See Yusuf v. Akidipe (2000) 5 SCN 128.
Further, it was argued that the claimant served a pre-trial notice on the 1st defendant, and once there was an averment in the statement of claim that a required pre-action notice was given to a respondent in a letter, a party intending to dispute the issue of non-compliance, must raise it in an affidavit. It is only then the other party may join issues by filing a counter affidavit and exhibiting any proof in that regard.
Concluding, counsel urged the court to dismiss this preliminary objection with substantial cost.
The defendants filed a Reply on Points of Law on 6/2/2019, in which counsel submitted that the claimant has no cause of action, because the indefinite suspension of the claimant arose on 24/7/2015 and it is statute-barred. A court will only enforce a law and not a Bill that has not yet being passed into law. See Aoko v Fagbemi (1961) 1 ANLR 4016.
Again, counsel contended that he who alleges must prove, and failure to serve same renders the action ineffective. See NNPC v Tijani (2007) All FWLR (pt 344) 129. Finally, counsel urged the court to grant the preliminary objection.
Having read through the arguments for and against the preliminary objection, I find that only two issues call for determination:
1. Whether this case is statute barred?
2. Whether this suit is incompetent for failure to serve a pre-action notice on the defendant(s)?
One of the prongs of the Defendant’s objection is premised on the provision of Section 2 (a) of the Public Officers’ Protection Act (Hereinafter referred to as POPA). According to the Defendant, the Claimant’s suit is statute barred by effect of Section 2 (a) of POPA which provides thus-
“2. 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 Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, 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.”
The above provision has limited the time within which actions can be commenced against public officers. Its import is that actions against public officers in respect of an act or acts done in pursuance or execution of any law or of any public duty or authority or in respect of a default in the execution of a Law, public duty or authority must be commenced within 3 months after the act, or default complained of. Where the suit is not commenced within the prescribed period, the Claimant’s right of action in respect of that cause will be statute barred and the court will no longer have jurisdiction to entertain the suit. See IBRAHIM vs. J.S.C, KADUNA STATE (1998) 12 SC 20; NNAMDI AZIKIWE UNIVERSITY, AWKA vs. NWEKE (2008) All FWLR (Pt. 428) 343.
Going by the provision, before a party can take protection under Section 2 (a) of POPA, these two conditions must be satisfied:
i. The person against whom the action is instituted must be a public officer or a person acting in the execution of public duties
ii. The act of the person challenged in the suit must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any law duty or authority.
It is necessary to observe that public officer or any person as used in POPA includes both natural persons and artificial persons such as public or statutory bodies or body of persons corporate or incorporate or institutions in so far as they are sued in respect of an act or acts done in pursuance or execution of any law or of any public duty or authority.
The Defendant has contended that the 1st defendant is a public officer and by virtue of Section 2 (a) of POPA, the suit is statute barred, as it was filed more than 3 months from the date the Claimant’s cause of action arose. On the other hand, the Claimant contended that the POPA Bill 2016 has extended the timeframe and that in any case, the Defendant is not a public officer, therefore, POPA does not apply to bar the suit.
Perhaps I may state at this stage that the work of the court becomes easier when counsel conduct diligent scrutiny of their approach to issues before the court. It is appalling and smacks of incompetence for a Respondent’s counsel responding to a NPO based on POPA to rely solely on a Bill in view of the avalanche of judicial authorities that overwhelmingly advance the principle that POPA does not apply to claims for work or labor done, or contract of service. It is my view that counsel should invest and engage in thorough research to enable them, put forward solid responses to legal issues thrown up by opposing counsel.
As stated earlier, the law is that where a statute provides for the institution of an action within a prescribed period, any action that is brought after the prescribed time is said to be statute barred. However, there is no doubt a careful reading of the claim reveals that it pertains to contract of service. See N.R.M.A & F.C. v JOHNSON (2019) 2 NWLR (pt 1656) 247 at 270.
I have no difficulty in holding that the defendants as employers of the claimant are not covered by the provisions of the POPA such as to render this suit statute barred.
The principal ground of this objection was on point of law, i.e. the POPA, as such, it was unnecessary to depose to an affidavit.
In any case, the non-filing of a supporting affidavit to a preliminary objection will depend on what is being objected to. In this instance, the allegation by the defendants on the non-service of a pre-action notice is a question of facts, thus requiring the filing of an affidavit mandatory. A party relying on a preliminary objection must justify the facts by filing an affidavit, per AMAH v NWANKWO (2007) 12 NWLR (pt 1049) 552 at 578.
Going through what is placed before me, I find and hold that the ground that this suit is incompetent by reason of non service on the defendants of pre-action notices, has not been justified by them.
Finally, having considered the submissions of counsel and all other facts relevant to the determination of the motion, I find that the Claimant’s suit is not statute barred. The action is maintainable and this court has jurisdiction to entertain it. In the circumstance, the appropriate order to make is for dismissal of the preliminary objection.
Accordingly, the preliminary objection is hereby dismissed with prejudice. This case shall proceed to hearing.
No costs awarded.
Ruling delivered in Owerri this 20th day of May, 2019.
Justice Ibrahim S. Galadima,