IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA
Date: 22nd June 2020 SUIT NO. NICN/LA/598/2018
OVERLAND AIRWAYS LIMITED … CLAIMANT
1. ENGR. ELISHA IBRAHIM … DEFENDANTS
2. SAMUEL YARO
3. THE INSPECTOR GENERAL OF POLICE
4. THE COMMISSIONER OF POLICE, AIR WING
1. By notice of preliminary objection dated 12th March 2019 and filed on 15th March 2019, brought pursuant to Section 254[C] of the Constitution of the Federal Republic of Nigeria 1999 [as amended], Sections 7 and 54 of the National Industrial Court Act, 2006, Order II Rule 1 of the National Industrial Court Practice Direction, 2012 and inherent powers of the Court, the Defendants prayed the Court as follows:
a. An order of the Court dismissing the entire complaint of the Respondent.
b. A declaration of the Court declining jurisdiction of the entire action.
c. And for such further or other orders as the Honourable Court will deem fit to make in the circumstances.
There are two grounds for the objection, to wit:
a. The complaint of the Claimant is statute barred.
b. The suit did not comply with Section 2 of the Public Officers Protection Act, 2004.
2. The preliminary objection is supported with 22 paragraphs affidavit deposed to by the 1st Defendant and attached to the affidavit are three documents. The first document is email correspondence between the 1st Defendant and the Claimant which was not referred to in the affidavit and was not marked. The second document is WhatsApp messages marked as Exhibit NP2. The third document is the training bond, marked as Exhibit NP3. In compliance with the Rules of the Court, the Defendants filed a written address dated 12th March 2019.
In response, the Claimant filed a counter affidavit dated 1st August 2019 and sworn to by Mr. Solomon Kwabe, a litigation officer in the Claimant’s Solicitors’ chambers and a written address of same date.
Arguing the application on 3rd June 2020, Mr. Anthony Iyeye, learned counsel for the Defendants relied on the affidavit in support of the application, attached exhibits and adopted the written address as his argument in support of the application and urged the Court to dismiss the suit. Mr. Toye Latilo, learned counsel for the Claimant, equally relied on all the paragraphs of the counter affidavit and adopted the written address as his argument in opposition to the preliminary objection and urged the Court to dismiss it.
3. In their written address, the Defendants raised one issue for determination, that is:
“Whether the complaint of the Respondent is not statute barred?”
Learned counsel submitted that for this Court to have jurisdiction, the cause of action must not be statute barred. Referring to Section 2 of the Public Officers Protection Act, he argued that a public officer cannot be sued outside the specified period of three months. Counsel noted that in determining whether an action is statute barred regard should be had to the writ of summons and statement of claim to ascertain when the cause of action arose and relate it to when the action was filed. If the time on the writ of summons is beyond the period allowed by the Limitation law, then the action is statute barred. He relied on the cases of Egbe v. Adefarasin  1 NWLR [Pt. 3] 549 and Alhaji v. Egbe  1 NWLR [Pt. 16] 361 at 623. He explained that paragraph 24 of the statement of facts shows that the 1st Defendant resigned from the Claimant to join the 3rd and 4th Defendants on 17th April 2016, while the complaint was filed on 29th November 2018.
He contended that the issue whether the action is statute barred touches on the jurisdiction of the Court; and a mathematical computation of the date the 1st Defendant resigned and the date when the action was filed reveals that it is more than the prescribed three months. Relying on Fred Egbe v. Abubakar Alhaji & Ors.  3 SCNJ 41, he submitted that where a Defendant raises a plea of protection under the Public Officers Protection Act, there is no basis for prying into the conduct of the Defendant which gave rise to the action; as the issue before the Court is whether the action is maintainable. He concluded that since the action was not commenced within the stipulated period, it is stale and unmaintainable. The Court was urged to dismiss the suit.
4. Learned counsel for the Claimant also submitted one issue for determination, to wit:
“Considering the reliefs and facts contained in the Statement of Facts of the Claimant/Respondent in this suit, whether the provisions of the Public Officers Protection Act are applicable to this case?”
Arguing this issue, counsel submitted that the law is now well established that the limitation laws, such as the provisions of Section 2[a] of the Public Officers Protection Act, are not provisions of blanket applicability. It was argued that for the provision to apply, the Court must be satisfied that the facts and reliefs in the suit come within the limited scope of Section 2 of the Act. The conditions to be satisfied are: one, that the action must relate to an act done in pursuance or execution of any Act or law; two, the action must relate to the execution of any public duty or authority; and thirdly, the action must be in respect of any alleged neglect or default in the execution of any such Act, law, duty or authority. He relied on the cases of Awolola v. Governor of Ekiti State & Ors.  LPELR-46346[SC] and Oyo State Board of Internal Revenue v. UI  LPELR-22151[CA].
Counsel also submitted that applying the above authorities to the facts of this case, the provision of Section 2[a] of the Public Officers Protection Act does not apply to this case in that the reliefs against the 1st Defendant are for breach of the training bond and employment contract and he was not a public officer at the time the cause of action accrued. Counsel noted that the case against the 3rd and 4th Defendants is for unlawful interference and inducement of breach of contract. He contended that there is nothing in the statement of facts suggestive that the acts complained of in this suit relate to any of the conditions in Section 2[a] of the Public Officers Protection Act. He also argued that there is no law which gives the 3rd and 4th Defendants power to interfere with the contract of employment of any employee. He cited a host of authorities including Tajudeen v. FIRS  LPELR-43856[CA] and Hassan v. Aliyu  17 NWLR [Pt. 1223] 547 at 591 to the effect that where a public officer acts outside the scope of his authority or without a semblance of legal justification, he cannot claim the protection of the Public Officers Protection Act.
It was further submitted that the Public Officers Protection Act does not apply to cases of contract. He relied on Wema Securities and Finance Plc v. Nigeria Agricultural Insurance Corp.  16 NWLR [Pt. 1484] 93 at 138 and Roe Limited v. UNN  LPELR-43855[SC] 21-22 amongst others; and urged the Court to discountenance the arguments contained in the Defendants’ written address and all the decisions relied on by the Defendants as they are distinguishable from this case.
In concluding, learned counsel submitted that it is not sufficient to allege that the Applicants are public officers, they must go further to establish that the acts complained of in this suit relate to execution of an Act, law, public duty or authority. He argued that the Applicants have not discharged this burden in their objection and urged the Court to dismiss the application.
5. Before considering the merits of the application, let me deal with one preliminary issue. It is important that learned counsel appearing in this Court familiarize themselves with the Rules of the National Industrial Court. The preliminary objection is brought pursuant to Section 254[C] of the Constitution of the Federal Republic of Nigeria 1999 [as amended], Sections 7 and 54 of the National Industrial Court Act, 2006 and Order II Rule 1 of the National Industrial Court Practice Direction, 2012. In the written address in support of the application, learned counsel substituted the National Industrial Court Practice Direction, 2012 with the National Industrial Court Rules, 2007. The National Industrial Court Practice Direction, 2012 and the National Industrial Court Rules, 2007 were repealed by Order 1 Rule 1 of the National Industrial Court of Nigeria [Civil Procedure] Rules, 2017, and cannot be the basis for bringing this application.
6. I have considered the processes filed by the parties and, in my respectful view, the issue for determination in this application is:
“Whether this suit as constituted is statute barred?”
The preliminary objection is predicated on Section 2[a] of the Public Officers Protection Act, CAP. P41, Laws of the Federation of Nigeria, 2004 which provides thus:
“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 provisions 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 continuance of damage or injury, within three months next after the ceasing thereof:
Provided that if the action, prosecution, or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison;”
7. It is the law, as rightly argued by learned counsel for the Defendants, that where a statute provides for institution of an action within a specified time, an action commenced after the prescribed period is said to be statute barred. See Osun State Government v. Dalami Nigeria Limited  3 SC [Pt. 1] 131 at 145 and National Revenue Mobilisation Allocation and Fiscal Commission & Ors. v. Ajibola Johnson  2 NWLR [Pt. 1656] 247 at 270. The Public Officers Protection Act is one of such statutes. Section 2[a] of the Act provides that an action shall not lie against any person for an 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 unless it is brought within three months of accrual of the cause of action. This provision has been applied in a plethora of cases, some of which have been cited by learned counsel for the parties. See also Elijah Adebiyi & Ors. v. National Institute of Public Information & Ors.  LPELR-22628[CA] 16-18.
The settled judicial opinion is that for Section 2[a] of the Public Officers Protection Act to avail a public officer, two conditions must exist, and these are:
a. The person against whom the action is brought must be a public officer or a person acting in execution of public duties within the meaning of the Act; and
b. The act complained of must be done in pursuance or execution of any law, public duty or authority, or in respect of any alleged neglect or default in execution of any such Act, law, duty or authority.
See the case of Awolola v. Governor of Ekiti State & Ors. [supra] at pages 22-23.
8. Looking at the claims before the Court, the first relief is for a declaration that the 1st Defendant can only validly terminate the employment contract with the Claimant by giving the Claimant three months’ notice or three months’ salary in lieu of notice and that the 1st Defendant breached the employment contract when he failed to give the Claimant three months required notice or three months’ salary in lieu of notice. The second relief is for a declaration that the 1st and 2nd Defendants breached the training bond agreement dated the 29th June 2015 between the Claimant and the 1st Defendant. The third relief seeks a declaration that the 3rd Defendant wrongfully induced the 1st Defendant to breach his employment agreement and training bond agreement by failing to carry out the necessary due diligence before employing the 1st Defendant and encouraged the 1st Defendant to breach the said agreement which practice constitutes an unfair labour practice. Reliefs 4, 5 and 6 seek various orders arising from reliefs 1 to 3.
Given the above claims, it is plain to me that, although the 1st, 3rd and 4th Defendants are public officers, the act complained of was not done in pursuance or execution of any law, public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, law, duty or authority. From the statement of facts, it is clear that the 1st Defendant was offered employment by the Claimant by letter dated 29th June 2015 in furtherance of which he executed a training bond of the same date. This fact was admitted in the joint statement of defence filed on behalf of the 1st, 3rd and 4th Defendants and the affidavit in support of the preliminary objection. The action against the 1st Defendant is for breach of contract and against the 3rd and 4th Defendants for inducing a breach of contract.
Consequently, I find as a fact that the 1st, 3rd and 4th Defendants were not acting in pursuance or execution of any law, public duty or authority in respect of the acts complained of in this suit. Also, for a public officer to take advantage of the Public Officers Protection Act, he must show that he acted in good faith. See Awolola v. Governor of Ekiti State & Ors. [supra] at page 26. Undoubtedly, a party who flagrantly breaches a contract which he voluntarily entered into and has taken benefit thereof cannot be said to have acted in good faith.
9. In addition, where the subject matter of the suit is a contract, the position of the Courts is that the performance or breach of a contract which a public officer or authority has the power but not the duty to make is not within the protection of the Act. In other words, in determining the statutory provision on limitation of action against a public officer or authority in an action brought upon contract, the nature of the contract must be considered. If the contract in issue is one which the parties have freely agreed to the terms of their relationship, the provision of the limitation period will not apply, unless expressly incorporated into the contract. See Elijah Adebiyi & Ors. v. National Institute of Public Information & Ors. [supra]. See also the cases of Osun State Government v. Dalami Nigeria Limited [supra] at page 147 and National Revenue Mobilisation Allocation and Fiscal Commission & Ors. v. Ajibola Johnson [supra] at page 270.
There is no gainsaying that this action involves a breach of contract by the 1st Defendant and inducement of a breach of contract by the 3rd and 4th Defendants. The terms of the contract between the Claimant and the 1st Defendant were mutually agreed and executed by both parties, taking it outside the ambit of the Public Officers Protection Act.
10. An application succeeds or fails on the strength of the affidavit in support. The affidavit is the evidence in support of the reliefs sought. It is the foundation and pillar upon which the reliefs rest. The argument of counsel merely reinforces the evidence but can never take the place of evidence. See United Bank for Africa Plc v. Osula  LPELR-7176[CA] 13-14 and Hydro-Tech Nigeria Ltd. & Anor. v. Leadway Assurance Co. Ltd & Ors.  LPELR-40146[CA] at page 40. There is nothing in the affidavit in support of the notice of preliminary objection or the statement of facts bringing this case within the provisions of the Public Officers Protection Act. In the circumstance, I agree with learned counsel for the Claimant that the Defendants have not discharged the burden thrust on them to prove that this suit falls within the ambit of the Public Officers Protection Act.
Accordingly, I hold that this action is not statute barred and this Court has jurisdiction to entertain it. Consequently, the notice of preliminary objection lacks merit and it is hereby dismissed.
I make no order as to costs.
Ruling is entered accordingly.
IKECHI GERALD NWENEKA
Attendance: Claimant is represented by Miss Enen Eshiet, Legal Officer, the Defendants are absent
Appearances: Toye Latilo Esq. with Michael Akinleye Esq. for the Claimant
Anthony Iyeye Esq. for the 1st, 3rd and 4th Defendants