IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: JULY 04, 2019. Suit No: NICN/YEN/15/2019
MR. ONYUKU DANIEL ---------------------
1. THE CHAIRMAN,
OGBIA LOCAL GOVERNMENT COUNCIL
2. OGBIA LOCAL GOVERNMENT COUNCIL
3. THE CHAIRMAN,
LOCAL GOVERNMENT SERVICE COMMISSION
4. BAYELSA STATE
LOCAL GOVERNMENT SERVICE COMMISSION
5. ATTORNEY GENERAL OF BAYELSA STATE
MINISTRY OF JUSTICE, BAYELSA STATE
Mr. O.J. Igbakuro Esq for the Claimant/Respondent.
A.T. Akindele Esq for the 3rd set of Defendant/Applicant.
The Claimant instituted this action against the Defendants vide a Complaint dated 15th March, 2019 and filed on the same date. The Claimant also filed a Statement of Facts, List of Witnesses, Witness Written Deposition on Oath and List of Documents to be relied upon in the cause of trial. The Claimants claims against the Defendants are as follows:
1. A DECLARATION that the purported retirement of the Claimant by the Bayelsa State Government acting through the office of the 2nd set of Defendants via a letter dated 4th day of April, 2018 is NOT in accordance with the extant provisions of the law and therefore null and void.
2. AN ORDER of court nullifying the purported retirement of the Claimant by the Bayelsa State Government acting through the office of the 2nd Set of Defendants.
3. A DECLARATION that the Claimant still remains a Lawful Employee of Ogbia Local Government Council.
4. A DECLARATION that the stoppage and or non-payment of the Claimants’ salaries from the month of January, 2018 till date by Ogbia Local Government Council is unlawful and therefore null and void.
5. AN ORDER of this Honourable court mandating the Defendants through the 1st set of Defendants to pay all arrears of salaries due to the Claimant from the month of January 2018, till the final determination of this matter.
The 1st, 2nd and 3rd sets of Defendants filed a Memorandum of Conditional Appearance on the 25th March, 2019; and alongside filed a Notice of Preliminary Objection.
DEFENDANTS/APPLICANTS’ NOTICE OF PRELIMINARY OBJECTION
The Defendants/Applicants filed a Notice of Preliminary Objection challenging the jurisdiction of this court on the ground that the action is statute barred having been filed outside the three months period under the Public Officers Protection Law and as such this court has no jurisdiction to hear and determine this suit.
In the Written Address counsel to the Defendants/Applicants formulated one issue for determination, whether this Honourable court has jurisdiction to adjudicate over this suit having been commenced well over three (3) months after the cause of action arose. And its the submission of the learned counsel to the applicants that the cause of action in this case for the grant of reliefs 1 – 5 in the Complaint and Statement of Facts by paragraphs 11, 12, 16 arose in April, 2018. By paragraph 11 of the Statement of Fact, the cause of action which is the retirement of the Claimant by the 2nd set of Defendants arose on the 4th day of April, 2018. And that this action was filed on the 15th day of March, 2019.
It is the contention of counsel that in determining how to compute time or period of Limitation Law, consideration must be given to the Writ of Summons and Statement of Claim alleging when the wrong was committed and by comparing that date with the date on which the Writ of Summons was filed. Referred to the authorities of MILITARY ADMINISTRATOR OF EKITI STATE & ORS VRS ALADEYELU & ORS (2007) 14 NWLR (PT. 1055) 619; FRED EGBE VRS HON. JUSTICE ADEFARASIN (1987) 1 NWLR (PT. 47) 20; MUDU & ORS VRS ADANCHI & ORS (2013) LPELR – 20774 (CA).
He said the whole essence of Limitation Law is to ensure that all claims are diligently and promptly presented and also guarantee finality of litigation. Cited the case of ASABORO & ANOR VRS PAN OCEAN OIL CORPORATION (NIG.) LTD & ANOR PER ONNOGHEN JSC. And that a cause of action matures or arises on a date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a court action in assertion or protection of his legal right that has been breached. Cited WOHEREM VRS EMERUWA (2004) 13 NWLR (PT. 890) 398.
Counsel further submits that once an action is statute barred the proper order to make is one of dismissal. Cited the case of OGOH VRS ENPEE IND. LTD. (2004) 17 NWLR (PT. 902) 460. Section 2(a) of the PUBLIC OFFICERS PROTECTION ACT, CAP P41 2004.
Finally, counsel urges this court to grant the application of the 3rd Set of Defendants/Applicants and dismiss the case of the Claimant for being statute barred.
CLAIMANT/RESPONDENT OPPOSITION TO THE NOTICE OF PRELIMINARY OBJECTION FILED BY THE DEFENDANTS/APPLICANTS
The Claimant/Respondent filed a written argument on 8th May, 2019 in stiff opposition to the Notice of Preliminary Objection of the Defendants/Applicants dated 20th March, 2019 and filed on the 25th March, 2019 after leave for extension of time to file same was granted on 22nd May, 2019.
In the written address counsel to the Claimant/Respondent formulated two issues for determination as follows:
1. Whether in the circumstances of this case, the 1st, 2nd and 3rd sets of Defendants/Applicants can claim the protection of section 2(a) of the Public Officers Protection Act or Law?
2. Whether having regard to sections 43 (1) and (2); 47 (1) and (2) of the Local Government Law of Bayelsa State Cap L10, Laws of Bayelsa State as well as section 9 of the Public Service Pension Board Law, Cap 19, Laws of Bayelsa State, 2006, and all the circumstances of the case, the suit is statute barred?
I wish to state here that I will not dwell much on some of the issues raised by the Learned counsel to the Claimant/Respondent in the written address as same goes to the substantive issues in this matter. Its trite that a court whether trial or appellate should not decide a substantive issue/matter at an interlocutory stage.
On the first issue of whether in the circumstances of this case, the 1st, 2nd and 3rd sets of Defendants/Applicants can claim the protection of Section 2 (a) of the Public Officers Protection Act or Law, it is the submission of counsel that the Public Officers Protection Act is not intended to cover public bodies or public institutions. That in the instant case, it is obvious that neither the 1st, 2nd or 3rd sets of Defendants/Applicants can claim the benefits or enjoy the protection of section 2 (a) of the Public Officer Protection Act. And that even the 1st Defendant in the 1st set of Defendants/Applicants, and the 1st Defendant in the 2nd set of Defendants as well as the 3rd set of Defendants/Applicants are not persons but rather a public office. While the 2nd Defendant in the 1st set of Defendants and 2nd Defendant in the 2nd set of Defendants are all public institutions and as such can not enjoy protection of the Act. Refers this court to the authorities of GARBA VRS SHUAIBU (2001) 8 NWLR (PT. 716) 506 – 768 PARAS 2 – 4; TAFIDA VRS ABUBAKAR (1991) 3 NWLR (PT. 230) 511; NWANKWO VRS ADEWUNMI (1967) NMLR.
Finally, counsel urged this court to dismiss the Preliminary Objection as this court has the jurisdiction to entertain this matter.
I have carefully read and understood all the processes filed by the Learned counsel to the 3rd Set of Defendants/Applicants canvassing both on Points of Law and of Facts. I have equally analysed the submissions made by counsel to the Claimant/Respondent. 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 robbed this court of the jurisdiction to entertain same.
But before I go further let me quickly clarify one issue which was canvassed by the Learned counsel to the Claimant/Respondent that Section 2 (a) of the Public Officers Protection Act is not meant to protect public institutions this is a total misconception of the law. In fact where Defendants are sued together for the same act and a public officer successfully raises the defence, the same enures to the benefit of the other Defendants. See SYLVA VRS INEC (2015) 16 NWLR (PT. 1468) PG 576 AT 619 – 620 PARA E – C PER NGWUTA JSC. Therefore the argument canvassed by counsel to the Claimant/Respondent that Public Officers Protection Act does not apply to public institutions is a total misconception of law. And I so hold.
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 VRS AKINYOSOYE (1995) 1 NWLR (PT. 374) 722 at 724; SHELL PET. DEV. CO. (NIG) LTD VRS FARAH (1995) 3 NWLR (Pt. 382) 148 at 156; AGI VRS 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 VRS 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 VRS 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 VRS 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 VRS 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 VRS 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 VRS 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 VRS 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 his Statement of Facts, averred that he was served with a retirement letter dated 4th April, 2018. See paragraphs 11 and 12 of the Statement of Facts, and reliefs 1, 2, 3, 4 and 5 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 4th April, 2018. And by looking at the complaint it is apparent that the Claimant instituted this action on the 15th March, 2019 that is to say this action was instituted almost a year after the accrual of the cause of action.
While I am in total support of the submissions made by the Learned counsel to the Defendants/Applicants that the cause of action aroused sometime in the month of April, 2018 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; I.N.E.C. VRS ONOWAKPOKO (2018) 2 NWLR (PT. 1602) 134 AT 167 PARA E – H PER KEKERE EKUN JSC.
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 his salary amounts to continuous injury each month and falls within the exceptions provided by the law moreover, the Claimant is challenging the action of the Defendants for acting outside the colours of their office and statutory duties. 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 his case.
Ruling is hereby entered accordingly.
HON. JUSTICE BASHAR A. ALKALI