IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP HON. JUSTICE P. I. HAMMAN --- JUDGE
DATE: 14TH MAY, 2020 SUIT NO: NICN/PHC/150/2018
MR. AWODUTIRE PHILIP OLUWATOBI --------- CLAIMANT/RESPONDENT
FEDERAL POLYTECHNIC OF OIL AND
GAS BONNY, RIVERS STATE DEFENDANT/APPLICANT
1.1. The Claimant commenced this suit against the Defendant vide Complaint and Statement of Facts filed on the 31st day of December, 2018, and claiming the following reliefs:
a. The immediate payment by the Defendant to the Claimant the sum of N3,315,737.32 (Three Million, Three Hundred Fifteen Thousand, Seven Hundred and Thirty Seven Naira, Thirty Two kobo) only, being the salary arrears of twenty – eight months beginning from August 2016 to December 2018 (the Defendant having paid a month salary).
b. The sum of N118,419.19 per month from the month of January 2019 till judgment is delivered.
c. The sum of N686,000.00 being the amount the Claimant is entitled as relocation allowance for relocating from Ibadan to Port Harcourt.
d. The sum of N5,000,000.00 as general damages for the suffering, debts, hardship and ridicule the Claimant was subjected to as result of the Defendant’s refusal to pay the arrears of salary and allowances.
e. 10% interest on the judgment sum until fully liquidated by the Defendant.
1.2. This Ruling is however in respect of the Defendant/Applicant’s Notice of Preliminary Objection dated 28th of March, 2019, and filed on 29th March, 2019. The Notice of Preliminary Objection which prays the court to dismiss this suit for want of jurisdiction has the following grounds:
i. The suit is statute barred having been commenced more than three (3) months after the cause of action arose contrary to section 2(a) of the Public Officers Protection Act, 2014.
ii. This suit is incompetent claimant having not served a pre-action notice on the Defendant.
In support of the Notice of Preliminary Objection is an affidavit of 4 paragraphs deposed to by Miss Charity Nwanosike, the Legal Secretary in the Law Firm of Edward & Wiiliam (Enbanc Chamber), the Defendant’s solicitors in this suit. Filed along with the Notice of Preliminary Objection is a Written Address wherein learned counsel to the Defendant/Applicant crafted a lone issue for determination, to wit: Whether the claim before this court is statute barred and the jurisdiction of this court ousted to entertain/hear this suit.
1.3. The learned counsel reproduced the provisions of section 2(a) of the Public Officers Protection Act, and submitted that, in order to determine whether an action is statute barred, the court is enjoined to look at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff the cause of action and to compare that date with the date the suit was filed in court. That where the time on the writ is beyond the limitation period allowed by law then the action is statute barred. That for the provisions of the Public Officers Protection Act to apply it must be shown that the person against whom the action was filed is a public officer or a person acting in the execution of public duties within the meaning of the law, and also that the act done by the person for which the action was filed was done in pursuance of the 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. References were made to the cases of Ibrahim V. Judicial Service Committee, Kaduna State (1998) LPELR 1408(SC) and Forestry Research Institute of Nigeria V. Gold (2007) LPELR-1287(SC).
1.4. That the Defendant in the instant suit is a public officer, and in paragraphs 10, 15 and 17 of the Statement of Facts the Claimant avers that his employment took effect from 1st August, 2016 and he has not been paid salary and was promised that 7 months salary would be paid to him but only one (1) month salary was paid to him on 30th December, 2016. That while the cause of action in this suit arose on 30th December, 2016, the suit was commenced on 30th December, 2018, after a period of two years of the accrual of the cause of action. That the suit is therefore statute barred and the court lacks the jurisdiction to entertain same.
1.5. It was the further argument of the learned counsel to the Defendant/Applicant that, the Defendant being a public officer is entitled to be served a pre-action notice before any action can be initiated against her, and the Claimant did not fulfill this pre-condition of serving pre-action notice on the defendant. That the failure to serve pre-action notice therefore nullifies the instant suit. See Shaibu V. NAICOM (2002) 12 NWLR (Pt. 780) 116 at 134.
1.6. The court was urged to uphold the Notice of Preliminary Objection, dismiss the suit and order the Claimant to pay to the Defendant cost of filing processes in this suit including solicitor’s fees.
1.7. In opposition to the application, the Claimant/Respondent filed 4 paragraphs Counter-Affidavit deposed to by Charles Odu, a Litigation Secretary in the Law Firm of B. M. Wifa & Co. on the 12th day of April, 2019. Annexed to the Counter-Affidavit are three (3) exhibits marked as exhibits ‘A’, ‘B’ and ‘C’. Filed along with the Counter-Affidavit is a Written Address wherein the Claimant/Respondent’s counsel adopted and argued the sole issue identified by the Defendant/Applicant.
These processes filed by the Claimant/Respondent were however deemed by the court on 31st January, 2020.
1.8. It was argued by the learned counsel to Claimant/Respondent that, a Defendant who intends to rely on a defence of limitation must expressly plead and distinctly raise the particular statutory provision relied on. That the Defendant in this case whose Statement of Defence had not been regularized at the time of filing this Objection cannot be said to have pleaded any statutory provision as required by law. That even the pleading in paragraph 25 of the Statement of Defence did not meet the requirement of pleading the particular statutory provision to be relied upon. The court was therefore urged to discountenance the Notice of Preliminary Objection. See Balogun Ketu V. Wahab Onikoro (1984) 10 SC 265; Oyebamiji V. Lawanson (2008) 6-7 SC (Pt. 1) 243 at 251-252; Allen V. Udubeko (1997) 5 NWLR (Pt. 506) 638, and Iheanocha V. Elogu (1995) 4 NWLR (Pt. 389) 324. See also Bullen and Lake and Jacob’s Precedents of Pleadings, 12th edition by I. H. Jacob at page 1199, as well as Order 30 Rule 8(2) of the Rules of this court, 2017.
1.9. Learned counsel further referred the court to paragraphs 21, 22, 23 and 24 of the Statement of Facts, and submitted that since the cause of action in this suit relates to the Defendant’s failure to pay the Claimant’s salary, it is a continuous injury and still subsisting. That the doctrine of continuing damage is an exception to a limitation period in a statute whereby a fresh cause of action arises from time to time, as often as the injury exists, referring to the case of Attorney General of Rivers State V. Attorney General of Bayelsa State & Anor. (2012) 6-7 MJSC (Pt. 3) 149, and Aremo II V. Adekanye (2004) All FWLR (Pt. 224) 2113 at 2132-2133.
1.10. With respect to the issue of pre-action notice, learned counsel drew the court’s attention to paragraph 23 of the Statement of Facts as well as paragraph 3 of the Counter-Affidavit and argued that, the Claimant duly served pre-action notice on the Defendant before commencing this suit. The court was finally urged to dismiss the Notice of Preliminary Objection with substantial cost.
1.11. It is pertinent to note that, the Defendant/Applicant filed a Reply on Points of Law on 30th January, 2020. In response to the argument of the Claimant/Respondent at paragraph 4.1 of their written address that since the Defendant’s Statement of Defence had not been regularized by the court, he could not have pleaded the issue of statutory limitation, it was replied that, the Defendant being an institution of the Federal Government established by law is a public officer to which the provision of section 2(a) of the Public Officers Protection Act applies. It was further argued that, where a preliminary objection strictly deals with issue of law, there is no need for a supporting affidavit, but the grounds of the objection must be clearly stated. See Oketade V. Adewunmi (2010) 8 NWLR (Pt. 1195) 63 at 77 paras. B-D; Amah V. Nwankwo (2007) LPELR-8225(CA). That in this case the Defendant pleaded the issue of the court’s jurisdiction in paragraph 26 of the Statement of Defence thereby complying with the provisions of Order 30 Rule 3(1) of the Rules of this Court, 2017.
1.12. It was further submitted that, the person who allegedly received the pre-action notice (one Grace Pepple) is not the defendant and it has not been shown that she received it on behalf of the defendant. That the court should discountenance the Claimant/Respondent’s Counter-Affidavit and submissions, and uphold the Notice of Preliminary Objection.
2.1. Having carefully considered the Notice of Preliminary Objection, the affidavits and arguments of learned counsel to the parties in this suit, it is evident that the instant Notice of Preliminary Objection is predicated on two grounds, first that the instant suit is statute barred by virtue of section 2(a) of the Public Officers Protection Act, and also that, the instant suit is incompetent for failure to serve pre-action notice on the defendant before instituting the suit.
2.2. The legal position on how to determine whether a suit is statute barred has been aptly canvassed by both learned counsel to the parties. At the risk of being repetitive, may I add that, in determining whether or not an action is statute barred, the court is enjoined to look at the Statement of Claim (in this instance the Statement of Facts) to ascertain when the cause of action arose, and compare that date with the date the suit was initiated to see whether or not it was commenced within the limitation period provided by law. See the case of MRS. COMFORT OLUFUNMILAYO ASABORO AND 1 OTHER V. PAN OCEAN OIL CORPORATION (NIGERIA) LIMITED AND 1 OTHER (2017) 7 N. W. L. R. (PART 1563) 42 AT 67 – 68, PARAGRAPHS H – C, where the apex court held thus: “It is to be reiterated that an action instituted after the expiration of the prescribed period is said to be statute – barred. That is to say that where the limitation of time is imposed in a statute unless that same law makes provision for extension of time, the courts have their hands tied from extending the time as the action filed outside the stipulated period will lapse by effluxion of time. The follow up to the above is to determine whether an action is statute barred and in doing this the court is expected to peruse the originating process, statement of claim together with the evidence on record where that has taken place to know when the wrong in question occurred and compare it with the date the originating process was filed in court. I rely on the case of Ogundipe V. NDIC (2008) All FWLR (Pt. 432) 1220 at 1239, (2009) 1 NWLR (Pt. 1123) 473.”
2.3. Applying the above principle to this case, I have gone through the reliefs sought by the Claimant in this case and the facts pleaded in the Statement of Facts in order to discover when the Claimant’s cause of action arose. By the averments in Paragraphs 10, 15, 17 and 28 of the Statement of Facts, the claimant is alleging that the last time he was paid a month’s salary was on the 30th day of December, 2016. While I therefore agree that the cause of action in this suit accrued in 2016, and this suit filed on 31st December, 2018 should have been statute barred by virtue of the provisions of section 2(a) of the Public Officers Protection Act, I am however aware of the submissions of the learned Claimant’s counsel that since the claims in this suit relate to nonpayment of salaries, same cannot be statute barred because of the doctrine of continuity of injury.
2.4. From the reliefs in this suit, it is clear that the Claimant is asking for the payment of arrears of salaries and other entitlements which he claimed that defendant has refused to pay him despite repeated demands. I therefore agree with the legal position as argued by the learned Claimant’s counsel that where the alleged damage/injury is a continuous one, the time will not begin to run for the purpose of computing the limitation period until the injury ceases. See University of Ilorin V. Mr. Jolayemi Ademola Ayodeji (2014) LPELR-23821(CA), and Central Bank of Nigeria V. Jacob Oladele Amao & Ors. (2015) 5 ACELR 1 at 24.
2.5. I must add that I am aware of the recent Supreme Court decision in the case of National Revenue Mobilisation Allocation and Fiscal Commission & Ors V. Ajibola Johnson & Ors (2019) 2 N.W.L.R. (Pt. 1656) 247 which has finally held that section 2(a) of the Public Officers Protection Act does not apply to cases of contracts, including employment contracts.
2.6. In the circumstance, and on the strength of the authorities cited and relied upon, I hold that the instant suit is not statute barred, being suit predicated on contract of employment and alleged non payment of arrears of salaries and other entitlements.
2.7. The second leg of the Objection is that, since the Claimant did not serve a pre-action notice on the defendant before instituting the instant suit, same is incompetent and liable to be struck out.
2.8. The law is that where pre-action notice is required same must be complied with before commencing any court action, and the failure to serve pre-action notice merely put the court’s jurisdiction on hold pending when same is complied with. See Dominic E. Ntiero V. Nigerian Ports Authority (2008) LPELR-2073(SC), and National Agency for Food and Drugs Administration and Control V. Mr. Eugene S. Onwuka (2013) LPELR-22316(CA).
2.9. The Claimant’s counsel has contended that contrary to the argument of the Defendant’s counsel, the Claimant served a pre-action notice on the Defendant before commencing the instant action. I have looked at the Statement of Facts and it is manifest that the Claimant pleaded in paragraphs 23 and 24 that his counsel Stanley Princewill Esq. served pre-action notice dated 1st November, 2018 on the Defendant prior to the commencement of this suit. The said Solicitor’s letter on the letterhead of the Law Firm of B. M. Wifa & Co. dated 1st November, 2018 was frontloaded along with the originating processes in this suit. While Exhibit ‘A’ annexed to the Claimant’s Counter-Affidavit is a copy of the letter dated 1st November, 2018, exhibits ‘B’ and ‘C’ on the other hand are copies of DHL Waybill dated 2nd November, 2018 and DHL proof of delivery indicating that same was delivered and signed for by one Grace Pepple on 5th November, 2018 at about 15:25.
The Defendant’s argument that the letter was not received by an officer known to the Defendant is of no moment at this point as that argument can only go to the weight to be attached to the letter.
2.10. In any case, the Defendant did not refer the court to any statutory provision requiring service of pre-action notice on the defendant before the defendant can be sued in any court of law. The only contention is that since the defendant is a public officer, it should be served with a pre-action notice before being sued. With respect to learned counsel, this argument is misconceived as to the best of my knowledge there is no general statutory provision requiring that all public institutions must be served with pre-action notice before being dragged to court.
2.11. The issue of pre-action notice in my view is institution specific and must be provided for in the Act/Law establishing the institution in question. Since none was brought to the attention of the court in this suit, the court cannot go on an expedition to fish for same.
2.12. It is therefore the decision of the court that the instant suit is not incompetent and the submissions of the defendant in that regard are hereby discountenanced. The lone issue identified by the Defendant/Applicant and adopted by the Claimant/Respondent is therefore resolved against the Defendant/Applicant.
2.13. The Notice of Preliminary Objection therefore fails for lacking in merit and same is hereby dismissed. I make no order as to cost. Ruling is entered accordingly.
Hon. Justice P. I. Hamman
O. O. Otemu Esq. holding the brief of Clifford N. Chuku Esq. for the Defendant/Applicant
No representation for the Claimant/Respondent