IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
BEFORE HIS LORDSHIP: HON. JUSTICE E.D.E ISELE
DATE: TUESDAY 27TH FEBRUARY, 2020 NO: NICN/MAID/2/2019
ABUBAKAR SULEIMAN……………………….. CLAIMANT/RESPONDENT
1. UNIVERSITY OF MAIDUGURI TEACHING HOSPITAL.
2. CHIEF MEDICAL DIRECTOR UNIVERSITY OF MAIDUGURI
TEACHING HOSPITAL. DEFEBDANT/RESPONDENT
3. THE MANAGEMENT BOARD, UNIVERSITY OF MAIDUGURI
1. S.M Ngadallah for the Claimant/ Respondent.
By Notice of Preliminary Objection dated 21st March, 2019 and filed on 28th March, 2019 brought pursuant to Order 15 Rule (1) (a) and Order 17 Rule 9 of the National Industrial Court of Nigeria (Civil Procedure Rule) 2017, the Defendant/Applicants urged this court to dismiss this suit for lack of competence. The grounds upon which this objection was raised are:
1. The complaint of the Claimant was initiated three (3) months after the accrual of the cause of action.
2. The complainant was dismissed from the services of the 3rd Defendant on the 30th October, 2018 and he commenced action against the Defendant on the 13th February, 2019.
3. The period between the complaint’s dismissal and filing the action is three months 13 days.
4. The court lacks the jurisdiction to entertain the action by virtue of section 2 of the public officers’ protection Act.
Attached to the Preliminary Objection is a written address where the Counsel to the Defendants/Applicants argued that by virtue of section 2 (a) of the public Officers Protection Act and the grounds he relied upon. This court lacks the jurisdiction to entertain the Claimant’s action for being statute barred.
And that in determining whether a matter is statute barred, it is the date of accrual of cause of action and the date of filing the claim that would be looked at and if the period between the date of accrual of cause of action and the date indicated in the writ is more than three months, then the court will have no jurisdiction to entertain the claim.
The Counsel submitted that by a letter of dismissal dated 2nd November, 2018 the Claimant was dismissed from the services of the 3rd Defendant effect from 30th October, 2018. The Claimant before this court on the 13th February, 2019 three months 13 days after the date of accrual cause of action.
And also that, the Claimant purported to acknowledged receipt of the letter of dismissal on the 19th November, 2018 as endorsed on the copy attached to the complaint, which according to the Counsel, the acknowledged copy of the letter cannot be in possession of the Claimant and therefore amount to self-acknowledgment.
The Counsel argued further that, whether the letter was served on the 19th November, 2018 as claimed or on the 2nd November, 2018, the fact remains that the period to be reckoned with as the effective date is the 30th October, 2018 when the cause of action arose citing the case of ETHIOPINA AIRLINES V. AFRIBANK NIG. PLC (2006) 17 NWLR (pt. 1008) p. 245 @ 263-264 C.A.
The Counsel finally submitted that, in this case, the cause of action accrued on the 30th October, 2018 and urged the court to dismiss the Claimant’s claim.
In opposition, the Claimant’s/Respondent’s Counsel filed a reply to the Defendants’ Preliminary Objection dated 29th March, 2019 and filed on the 2nd April, 2019. The learned Counsel submitted that the Claimant’s action was initiated within three months period as against the Defendants’ contention that the action was filed 13 days outside the three months allowed by law.
The Claimant’s Counsel maintained that his Client (the Claimant) was served with dismissal letter on 19th November, 2018 and that the endorsed copy is with the 1st Defendant but they willfully refused to attach same to the process they filed, just to enable them file this Notice of Preliminary Objection.
The Counsel cited the case of A.G. BAYELSA V. A.G. RIVERS STATE (2006) LPELR-615 (SC) where the Supreme Court interpreted cause of action to mean:
“Fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person the right to judicial relief.”
The Counsel then submitted that the cause of action arose at the time or date on which in incident which give right to action occurs. In EBOIGBE V. NNPC (1994) (SC) it was held that:
“The cause of action generally accrues on the date on which the incident given rise to the cause of actions accrues.”
The Counsel then stated that the Claimant’s dismissal letter gives right to the cause of action of the Claimant and the dismissal letter came to his notice on the 19th November, 2018 when he was served with same through his friend Hassan Mustapha who worked together and that the Claimant only indicate the date he was served, after it was handed over to him by his friend.
The Counsel then submitted that in the instant case, the cause of action arose on the 19th November, 2018 when the Claimant received the dismissal letter, citing the case of DADA V. AINA (2008) VOL. 37 WRN 110 @ 119 lines 40-45; 124 lines 10-15 (C.A).
The Counsel finally argued that he Defendants’/Applicants’ application must fail because he willfully refuse to avail this court the endorse copy of the Claimant’s dismissal letter and that the friend of the Claimant who received the letter of dismissal on his behalf signed a dispatch book on 19th November, 2018.
In conclusion, the Counsel submitted that the action of the Claimant is not caught by statute of limitation and prayed the court to dismiss the Notice of Preliminary Objection for lacking in merit with One Million Naira (1, 000, 000) cost against Defendants.
Having carefully considered the contentions in this application and authorities cited by Counsel to both parties, I am of the considered view that the sole issue for this court to determine is:
“Whether or not this action is statue barred under section 2 (a) of the Public Officers Protection Act.”
Section 2 (a) of the Public Officers Protection Act provides as follows:
“Where any action, prosecution or other proceedings 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 respect of any alleged neglect or default in the execution of any 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 continuance damage or injury, within three months next after the ceasing thereof.
Oputa JSC in EGBE V. ADEFARASIN (1987) 1 NWLR (pt. 47) 1 @ 20 held that:
“A cause of action is said to be statute barred if in respect of its proceedings it cannot be brought the period laid down by the limitation law or Act has elapse. How does one determine the period of limitation? The answer is simple by looking at the wit of summons and the statement of claim alleging when the wrong was committed which gave Plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed this be done without taking oral evidence.”
What then is the cause of action?
Supreme Court in SHOBOJA V. AMUDA (1992) 7 SCNJ 317 @ 326 defined a cause of action as the facts, which when proved, will entitle a Plaintiff to a remedy against the Defendant. And in MOBIL V. LASEPA (2003) 104 LRLN 240 @ 268 Supreme Court held that once the allegations are such that show a real controversy that were capable of leading to grant of a relief, then a reasonable cause of action has been disclosed in the pleadings.
It is settled law that in determining whether a matter is statute barred or not the court looks at filed writ of summons and statement of claim alleging when the wrong was done by the Defendant, that is when the cause of action arose if the date of filing endorsed on the writ is beyond that permitted by limitation law, then action is statue-barred, see ELABANJO V. DAWODU (2006) 15 NWLR (pt. 1001) 76.
Now when does dismissal from an employment take effect? Is it on the day when an employee was dismissed or on the day he became aware of the dismissal? By authority of JALLCO LTD V. OWONIBOYS TECHNICAL SERVICES LTD (1995) 4 NWLR (pt. 391) 534 @ 547 Per Muhammad JSC a dismissal does not take effect unless and until it is communicated to the employee in order for the termination to be effective. This is contrary to the applicants’ submission that termination of employment of the respondent took effect on the date decision for his termination was made not on the date he became aware of the dismissal.
The Claimant/Respondent averred in his statement of claim that he became aware of his dismissal on the 19th November, 2018 this was not controverted by the applicants. Hence from these facts the cause of action accrued on the 19th November, 2018 the Claimant’s/Respondent’s claim was received by this court on the 13th February, 2019 this means that the Claimant commenced this action two months 25 days after the cause of action accrued. This action is not therefore caught by Public Officers Protection Act, this case is not statute-barred. The P.O is stuck out, the case shall proceed to trial.
Ruling entered accordingly. I make no order as to cost.
HON. JUSTICE E. D. E. ISELE