IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA
ON THE 17TH DAY OF MAY, 2019
SUIT NO: NICN/MKD/87/2018
ANYE JOHN IOREMBER CLAIMANT
NATIONAL OPEN UNIVERSITY OF NIGERIA DEFENDANT
T.A. Ikpa Esq for the Claimant
E.T. Kassar Esq for the Defendant.
The Defendant herein has entered a Preliminary Objection to the Claimant’s Complaint dated 20/12/2018 before the Honourable Court. The Defendant’s Notice of Preliminary Objection is dated 05/02/2019 and filed on 06/02/2019; and is brought on the premise that the Honourable Court lacks jurisdiction. The reliefs as sought and contained on the face of the Notice of preliminary Objection are thus:
"1. An Order of this Honourable Court dismissing this suit on the ground that the Honourable Court lacks Jurisdiction to determine same.
2. Any other Order or further orders as this Honourable Court may deem fit to grant in the circumstances of this suit."
The ground for the said objection is that: The Claimant’s action is statute barred and incompetent having not been commenced within mandatory statutory period of three (3) months, of the accrual of the cause of action, by virtue of Section 2 of the Public Officers Protection Act. Cap P. 41 Laws of the Federation of Nigeria, 2004.
A written address of Counsel for the Defendant accompanied and supported the Notice of Preliminary Objection. Thereby, counsel formulated and submitted a sole issue for determination, to wit:
"Whether this action is not statute barred considering the provisions of section 2 of the Public Officers Protection Act Cap. P. 41 LFN 2004."
Counsel, while arguing the issue so formulated cited and relied on a host of case-law authorities including: EGBE V. ADEFARASIN (1987) 1 NWLR PT 47 @ P. 1; NWEKE V. NNAMDI AZIKIWE UNIVERSITY, AWKA (2017) 18 NWLR PT 1598, 454; YARE V. NATIONAL SALARIES, WAGES AND INCOME COMMISSION (2013)12 NWLR (PT 1367), 173 @ RATIO 7, 8, 9 & 10; IBRAHIM V. JSC KADUNA STATE (1998) 14 NWLR (PT 584 @ 1, @ P. 31 – 32; AREMO II V. ADEKANYE (2004) 7 S. C. (PT II) @ P. 28; UMUKORO V. NPA (1997) 4 NWLR (PT 502) @ 656; NIGERIAN BROADCASTING COR. V. BANKOLE (1972) 1 ALL NLR (PT. 1) 327; MOSOJO V. OYETAYO (2003) 13 NWLR (PT. 837) 340 @ 351. Counsel on behalf of the applicant argued that considering the provision of Section 2 of the Public Officers Protection Act, non-compliance with same in initiating an action means that the court is robbed of the jurisdiction to entertain the case.
In response to the Notice of Preliminary Objection, the Claimant’s Counsel filed a written address on 20/02/2019 but dated 14th February, 2019. Counsel posed for the court’s determination the issue thus:
"Whether or not this suit is statute barred thus robbing this Honourble Court of the requisite Jurisdiction regard being had to the extant provisions of both Statutory and case law applicable to the suit and the Honourable Court."
Arguing, counsel invited the court to find that the befitting answer to the poser is in the negative; that the suit is not statute barred and the court is seized of jurisdiction to entertain same. Arguing further, Counsel contended that though the cause of action arose since August 2013, which is outside the three (3) months period prescribed by Section 2 of the Public Officers Protection Act, but the Claimant’s claim against the Defendant alleges the breach of the Claimant’s constitutional right to fair hearing before the termination of his appointment with the Defendant. So relying on Order III of the Fundamental Rights (Enforcement Procedure) Rules 2009, counsel submitted that an application for the enforcement of fundamental rights shall not to be affected by any statute of limitation.
Finally, counsel urged the Court to hold that the suit is hinged on breach of fundamental right to fair hearing under Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and to overrule the Preliminary Objection.
Reacting to the Claimant’s Counsel’s Written Address, the Defendant/Applicant filed a Reply on Points of Law on 28/02/2019. By that token, counsel questioned
“Whether this action is an action for the enforcement of fundamental right to fair hearing, which is exempted from the effect of Section 2 (a) of the Public Officers Protection Act 2004.”
Arguing in reply, counsel contended that the effect of Section 2 of the Public Officers Protection Act is to bar actions commenced outside the stipulated time frame. Counsel submitted that irrespective of whether the cause of action is the right to fair hearing or not, once the action was commenced outside the three (3) months period provided by the Act, there was effectively no cause of action for the court to determine. Counsel Cited and relied on FAJIMOLU v. UNILORIN (2007) 2 NWLR (PT 1017) @ 74 RATIO 6, 7, 8, 9 & 10.
Counsel also argued that an action commenced by way of writ of summons does not have the same import as an application for the enforcement of the Fundamental Right as provided under Order 3 of the Fundamental Right (Enforcement) Procedure Rules 2009. Counsel also Cited and relied on the case of YARI V. MODDIBO ADAMAWA UNIVERSITY OF TECHNOLOGY YOLA (2016) NGCA 36.
Counsel invited the court to take notice that the way the action is couched or drafted has determined what the claim is about. That the instant action being one commenced by way of writ cannot pretend to be an action for enforcement of fundamental right. The jurisdiction of the court cannot be invoked if the right to fair hearing in this case is ancillary to the main claim. Counsel submitted that the action is caught by limitation law and therefore incompetent. Cited the Supreme Court case of WAEC V. AKINKUMI (2008) 4 SC 1. Tukur V Government of Taraba State (1997) NWLR (Pt. 510) Egbe V Alhaji (1990) NWLR (Pt. 128), 546.
OPINION OF COURT
Having carefully gone through the processes filed by the parties and their respective arguments, I need to say without necessarily stressing the issues that, the proper context of the court’s determination is primarily as to whether this court is robbed of the jurisdiction to entertain this matter because it is statute barred by reason of the protection afforded Public Officers by the operation of Section 2 of the Public Officers Protection Act.
But before I address this issue and make a finding on same, let me address some equally pertinent issues at this threshold as well.
A little hint into the background of this case should suffice: The reliefs sought by the Claimant in the substantive Claim will be necessary in coming to a conclusion on the matter. The Claimant herein commenced this suit against the Defendant by way of a Complaint filed on 20/12/2018 but the cause of action arose on 6/4/2013. The endorsed claims on the complaint are thus:
"1. A DECLARATION that the termination of the Claimant’s employment by the Defendant on the ground of misconduct without first giving the Claimant an opportunity to be heard on the said allegation is a breach of the Claimant’s right to fair hearing guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
2. AN ORDER of the Court setting aside the termination of the Claimant’s appointment and directing the Defendant to reinstate the Claimant to his position he occupied in the employment of the Defendant before the unlawful, unconstitutional, illegal, null and void termination of the Claimant’s appointment by the Defendant.
3. AN ORDER of Court directing the Defendant to pay to the Claimant the sum of Four Million, Two Hundred and Sixty Thousand, Eight Hundred and Ten Naira, Ninety- Six Kobo Only (N4,260, 810.96) being the sum due and accruing to the Claimant as Claimant’s accumulated unpaid arrears of salaries from September, 2013 to November, 2018.
4. AN ORDER of Court binding the Defendant to pay the Claimant’s salaries as same shall fall due from December, 2018 till the date of Judgment in this suit.
5. AN ORDER of court directing the Defendant to pay to the Claimant 10% interest per annum on the Claimant’s arrears of salaries from 2013 to 2018.
6. AN ORDER of Court directing the Defendant to pay to the Claimant the sum of Twenty Million Naira (N20,000,000.00) as general and exemplary damages for breach of contract.
7. AN ORDER of Court directing the Defendant to pay to the Claimants the sum of One Million Five Hundred Thousand Naira (1,500,000.00) only being the cost of this litigation.
8. AN ORDER of court directing the Defendant to pay to the Claimant 10% post judgment interest on the judgment sum per annum till same is liquidated."
Whether this suit can properly be said to be an action for the enforcement of fundamental right to fair hearing as alleged by the Claimant, and if so, whether it is competent considering the mode of commencement adopted by the Claimant. This is an issue that is begging for the attention of the Court.
The doctrine of fair hearing as stipulated in Section 36 (1) of the Constitution of the Federal Republic of Nigeria states the following:
“36- (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
In this instance, the Claimant’s averred narrative, in brief, is that there was never a point when he was empanelled or cited for any misconduct by the Defendant. Rather, according to him, his ordeal started after he testified against certain colleagues who had different cases of misconduct to answer before a panel setup by the Defendant. Thereafter, the tables turned against him. The Claimant is therefore of the opinion that he was denied the fundamental right to fair hearing before being relieved of his duty by the Defendant.
Be that as it may, I need point out that the Fundamental Rights procedure is sui generis. Where the alleged breach of right is ancillary or incidental to the main grievance or complaint, it is incompetent to proceed under the rules. This is because the right, if any, violated, is not synonymous with the substantive claim which is the subject-matter of the action. Enforcement of the right per se cannot resolve the substantive claim which is any case different. See SEA TRUCKS (NIGERIA) LTD. V. ANIGBORO(2001) LPELR-3025(SC)(Per Karibi-Whyte, J.S.C)
If the Claimant’s cause of action is properly founded on breach of the Fundamental right to fair hearing then, it should not be commenced by way of complaint.
I need to say that although the reliefs of the claimant boarders on breach of right to fair hearing, but the main complaint is wrongful termination of appointment. I hold that the allegation of breach of fundamental right to fair hearing is ancillary to the main claim. See Tukur V Government of Taraba state(supra).
Turning now to the issue of substance, whether the suit is statute barred? Section 2 of the Public Officers Protection Act 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 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 or authority, the following provisions shall have effect –
(a) Limitation Action
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 continuance of damage or injury within three months next after ceasing thereof…”
Clearly, the Act constitutes a limitation law against claim by a person whose right has been affected by an act or default done or intended, in the lawful execution of a public duty. In such event, it becomes imperative for person affected to commence an action for redress within three months after such act or default. The implication of an action being statute barred is that because it has not been instituted within the period stipulated under the law, such action is deemed dead on arrival as the cause of action is left bare and unenforceable. In effect, even if the action were to be otherwise meritorious, the court will be divested of the jurisdiction to entertain it. SEE: OGUN STATE GOVERNMENT V. DALAMI NIG. LTD. (2007) ALL FWLR (PT.365)438; CHIGHU V. TONIMAS (NIG) LTD (2006) 9 NWLR (PT. 984) 189; SANNI V. OKENE LOCAL GOVERNMENT (2005) 14 NWLR (PT. 944) 60.
It is worth noting that this provision admits of some exceptions. In ATTORNEY-GENERAL OF RIVERS STATE V. ATTORNEY-GENERAL OF BAYELSA STATE (2012) 6-7 MJSC (PT. 111) 149, the Supreme Court stated at pages 181 - 182 that the Public officers (protection) Act was never intended to deprive a party of legal capacity to ventilate his grievance on the face of stark injustice hence, the Act has prescribed two “most important exceptions” as follows:
"First, in case of continuance of damage or injury the Act - permits action to be brought on the expiration thereof outside three months. The second exception to the application of the Act as a defence is that it does not cover a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty as claimed by the plaintiff in this suit. See NWANKWERE V. ADEWUMI (1967) NWLR 45 AT 49; ANOZIE V. ATTORNEY GENERAL OF THE FEDERATION (2008) 10 NWLR (PT. 1095) 278 AT 290 - 291".
In the same token, the recent Supreme Court decision on section 2 of the Public Officers Protection Act has put his issue to rest. The Act has been held by Hon Justice Ariwoola not to apply to contracts of service. The case is, National Revenue Mobilization Allocation and Fiscal Commission & 2 Ors v. Ajibola Johnson & 10 ors (2019) 2 NWLR (Pt. 1656) 247 @ 270-271, where 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 respondents’ action stature 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...”
In the light of the above, the action filed by the Claimant challenging his alleged wrongful termination of his appointment is within the purview of contract of service hence not caught up by the provisions of section 2 of the Public Officers Protection Act. Consequently, the Notice of Preliminary Objection dated 5/2/2019 and filed on the 6/2/2019 fails is accordingly dismissed.
Ruling is entered accordingly. I make no order as to cost.
HON. JUSTICE S. H. DANJIDDA