IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE
Dated: 8th December 2017
SUIT NO: NICN/ABJ/38/2017
Dayo Usman Aliyu - Claimant/Respondent
1. The Office of Accountant General
of the Federation
2. The Accountant General of The Defendant/Applicant
3. The Federal Ministry of Finance
Tope Fesobi for the Claimant
Yahaya Abubakar for the Defendants
In a notice of preliminary objection filed on 13th April 2017, the Defendants challenged the jurisdiction of this court to hear and determine this suit. The two grounds of the objection are that the suit discloses no reasonable cause of action and it is statute barred. The Defendants then prayed the court to either strike out the suit or strike out the Defendants from the suit.
In his written address in support of the NPO, counsel to the Defendants raised a sole issue for determination to wit;
Whether this action is not caught by limitation of statute.
On the sole issue, raised the following questions:
i. Are the Defendants Public Officers within the contemplation of the Public Officers Protection Act?
ii. When did time start to run?
iii. Is the action barred by statute?
Answering questions i. and iii. In the affirmative, counsel submitted that the that it is settled law on the strength of the Supreme Court authority of IBRAHIM vs. JUDICAL SERVICE COMMISSION, KADUNA STATE (1998) 14 NWLR (Pt. 584) Pg. 1 that the Defendants are public officers within the contemplation of the Public Officers Protection Act. Citing the provision of Section 2(a) Of the Public Officers (Protection) Act Cap 379 Laws of the Federation of Nigeria which sets a three-month limitation period, counsel submitted that the Statute is applicable to both public officers and public authority, and it renders any suit commenced after the 3-month period statute barred, and therefore should be dismissed. Counsel cited the case of WILLIAM OLAGUNJU & ANOTHER vs. POWER HOLDING CO. OF NIGERIA PLC. (2011) 4 SCN 192 @ 202 where His Lordship Onnoghen W.S.N. JSC held thus
“Where a Defendant contends that the action of the Plaintiff is statute barred, he is raising an issue of jurisdiction of the court concerned on points of law because where an action is found to be statute barred, it means that the court has no jurisdiction to entertain it however meritorious the case may be. The success of that point takes away the right of action from Plaintiff leaving him with an empty unenforceable cause of action"
Also, "The Effect of limitation law is that legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period" Per ADEKEYE, JSC in C.P.C vs. YUGUDA  7 NWLR (Pt. 1354) 450.
According to counsel, the whole essence of Limitation Law is that where a person has a right to sue another in order to vindicate his or her rights against a person or authority, he or she must institute his or her action timeously within the space of time prescribed or limited in the Limitation Law; otherwise his or her right to exercise his accrued rights or obligation against a defendant will be extinguished by defluxion of time. See TIMIPRE SYLVA vs. INEC & ORS. (2015) 3 SCM 263 at 269.
Counsel referred to the case of AJAYI s. ADEBIYI (Supra) on the essence of statute of limitation, where GALADIMA, JSC stated as follows:
"The essence of a limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Therefore a cause of action is statute barred.
If legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had lapsed, an action which is not brought within the prescribed period offends the provisions of the law and cannot give rise to a cause of action.
According to counsel, in determining whether a cause of action arises or not, the court will look at the writ of summons, the averments of the Claimants in his statement of facts, as well as the facts and other circumstances of the case. Hence the court does not look at the statement of defence to determine when the cause of action accrued. See SEVEN-UP BOTTLING CO. vs. AKINWARE (2011) 15 NWLR (Pt. 1270) Pg. 305.
“A cause of action consists of every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. In other words, it is the bundle of aggregate of facts which the law will recognize as giving the plaintiff a substantive right to make a claim against the relief or remedy being sought. Thus, the factual situation on which the plaintiff relies to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the defendant. “(AJAYI vs. MILITARY ADMINISTRATOR ONDO STATE (1997) 5 NWLR (Pt. 710) 647; SANDA vs. KUKAWA L.G. (1991) 2 NWLR (Pt. 174) 379.
According to counsel, the yardsticks to determine whether an action is statute-barred are: The date when the cause of action accrued; the date of commencement of the suit as indicated in the writ of Summons /Complaint; and the period of time prescribed for bringing an action, to be ascertained from the statute in question.
Counsel contended that time begins to run for the purposes of the limitation law, from the date the cause of action accrues, See the Apex Court decision in SULGRAVE HOLDINGS INC. vs. FGN (2012) 17 NWLR (Pt. 1329) 309, (2012) 12 SCM, (Pt, 2), 446 and MERCANTILE BANK (NIGERIA) LTD. vs. FCTECO LTD (198) 3 NWLR (Pt. 540) 143 at 156.
Once a defence of limitation of time is stated and grounded in the averments in support of the summons, this bars the plaintiff from seeking a remedy and extinguishes the right of his action; and there will be no basis for prying into the conduct of the Plaintiff. See IWUOHA & ANOR vs. KEZIE & ANOR (2016) LPELR-4078(CA).
Citing the case of GOODWILL CO LTD vs. CALABA CEMENT CO. LTD (2010) All FWLR [Pt. 544] Pgs 40-41, Counsel pointed out that negotiation does not stop time from running.
"The law does not prohibit or stop parties from engaging in negotiation, however, it does not prevent or stop the period of limitation stipulated by statute from running. When in respect of a cause of action, the period of limitation begins to run, it is not broken and it does not cease to run merely because the parties engaged in negotiations. Negotiation on its own does not retard or stop the defluxion of time nor does it revive an extant cause of action, except where as a result, there is what can be reasonably regarded as a settlement of the dispute or an admission of liability on the party of the defendant, limitation period continues to run. The best cause for a person to whom a right of action has accrued is to institute a case the negotiation fails."
Going by the above-stated position of the Court, counsel submitted that the question arising is whether the facts put before the court by the plaintiff are indeed the entire set of facts in this matter? It is trite that the court can only determine the cause of action from the processes of the Claimant. For purposes of limitation of action, time begins to run from the moment the cause of action arose or accrued. In determining whether an action is statute-barred or not, it is pertinent to ask when time begins run. According to Counsel, the time began to run since 20th day of April 2016 when the Claimant was suspended; there was in existence a person in law who could be sued and all facts had happened which are material to be proved to entitle the Claimant to institute this matter. He ought to have brought this action against the Defendants within the time stipulated for an action of this nature.
On the effect of raising issue of limitation of action on jurisdiction of court, counsel cited the case of HASSAN vs. ALlYU  All FWLR (Pt. 539) 1014 where the Supreme Court has held that “When an issue of limitation of time to institute an action is raised, it is a preliminary issue touching on the competence of not only the action but of the court before which the action pends. (P. 1038, PARAS. [F-G]."
According to counsel, even the Statute regulating the activities of the Claimant grants the Defendants the powers to discipline any erring person(s) in the Civil Service of the Federation Section 160501 of the Public Service Rules provided for who has the powers to discipline:
"160501 The power to exercise disciplinary control over Officers in Parastatals is vested in the Supervisory Boards/Councils in accordance with their respective conditions of service."
Section 030401 defines what a serious misconduct means: Serious Misconduct is a specific act of very serious wrongdoing and improper behavior which is inimical to the image of the service and which can be investigated and if proven, may lead to dismissal."
In the same vein, Section 030434 Says “...no officer shall receive any bribe or engage in corrupt practices." This is a serious misconduct, the Equitable Maxim of "Let he who comes to equity come with a clean hands" has not been followed by the Claimant here. The Claimant position cannot be allowed to fly and the Court should always frown at it.
Section 030407 of the Public Service Rules state thus:
"The Ultimate penalty for serious misconduct is dismissal. An Officer who is dismissed forfeits all claims to retiring benefits, leave or transport grant etc subject to the provisions of the pension reform Act 2004.
Counsel further submitted that the Claimant Suspension from service was based on fraudulent act, reasons were adduced for the termination and due process was followed. A person who believed his appointment was suspended unjustly cannot come to court outside the 3 month provided for by the Public Officers protection Act.
Counsel referred the court to the case of WILIAMS vs. WILLIAMS (2008) 10 NWLR (Pt. 1095) 364 where it was held that Where an action is statute barred, a Plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of time laid down has elapsed.
See EBOIGBE vs. N.N.P.C.  5 NWLR (Pt. 347) 649, ODUBEKO vs. FOWLER (Supra); SANDA vs. KUKAWA LOCAL GOVERNMENT (Supra). EKEOGU vs. ALIRI  3 NWLR (Pt. 179) 258.
The Limitation Law is procedural, setting out clearly time frame within which an action must be brought. Unlike substantive law, it is retroactive in nature and such statues must be read as a whole.
On the proper order the Court should make where an action is statute-barred, counsel relied on the case of GOODWILL CO. LTD vs. CALABA CEMENT CO. LTD (2010) All FWLR [Pt. 544] Pg. 42 and submitted that the proper order to make is that of dismissal and not striking out the action.
Counsel urged the court to dismiss the action for being statute barred, as equity does not aid the indolent.
In opposition to the Notice of Preliminary Objection, the Claimant on the 19th day of May 2017 filed a counter affidavit and a written address; although it is observed that the Defendants did not support the NPO with an affidavit.
In the accompanying written address, counsel submitted that the sole issue for determination is whether the Claimant/Respondent has placed enough material facts before the Court to warrant the grant of this application.
Counsel submitted that the Public Officers Protection Act is intended as much as within the limits of the law to protect public officers from detraction and unnecessary litigation but never intended to deprive a party of the legal capacity to ventilate his grievance on the face of stark injustice. This is in line with the decision of the Supreme Court in INSPECTOR GENERAL OF POLICE vs. ZEBRA ENERGY LTD (2002) 18 NWLR (Pt. 798) 162 at 196 per MOHAMMED J.S.C:
"The provisions of the Public Officers Protection Act are not absolute. The provisions do not apply in actions for recovery of land, breaches of contract, claims work and labour done." The Court went further to hold that; "the Public Officers Protection Act was not intended by the legislature to apply to contract, the law does not apply in cases of recovery of land, breaches of contract, or for claims for work and labour done. "
He submitted further that the Supreme Court had stated in plethora of cases that the Public Officers Protection Act does not apply in certain exceptional cases. In ATTORNEY GENERAL OF RIVERS STATE vs. ATTORNEY- GENERAL OF BAYELSA STATE & ANOR (2013) 3 NWLR (Pt. 1340) 123 at 148-149 PARAS H-A, the Supreme Court held per GALADIMA, J.S.C:
"In cases of continuance of damage or injury, the Act permits actions to be brought on the cessation thereof outside three months. From the amended statement of claim and as equally deposed to in his counter affidavit, the plaintiff averred that, he continues to be deprived of the allocation he is entitled to every month and the same has not ceased. I am of the responsible view that in such a situation of continuance of damage or injury which has not ceased, the defence is not available to the 1st defendant."
The Supreme Court further held per GALADIMA, J.S.C, PARAS F-G,
"The second exception to the application of the Act as a defense 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 claim by the plaintiff in this suit."
Counsel submitted that paragraphs 10 & 11 of the Claimant/Respondent's counter affidavit states that the Claimant/Respondent is still being suspended unlawfully and that he is still being deprived of his salary and other entitlement to date. This according to counsel, falls under the exceptions clearly enumerated in a plethora of authorities by the Supreme Court. See ANOZIE vs. ATTORNEY-GENERAL OF THE FEDERATION (2008) 10 NWLR (Pt.1095) 278 at 290-291.
Counsel went on that the Public Officers Protection Act is only available to a Public Officer who acted in good faith in the execution of public duty. This is the position of the Supreme Court in INSPECTOR-GENERAL OF POLICE vs. OLATUNJI 21 NLR 51.
Counsel referred the court to the Claimant/Respondent’s counter affidavit particularly paragraphs 4, 5, 6, 7, 8 in support of this counter affidavit to the effect that the Claimant/Respondent was not served with any query letter before he was unlawfully suspended by the Defendants/Applicants contrary to Rules 030403 and 030302 of the Public Service Rules. Counsel referred the Court to EXHIBIT A attached to the counter affidavit in support of their application which is the suspension letter issued by the 1st and 2nd Defendants to the Claimant in line with the Public Service Rule 030403 without fulfilling the condition precedent contained in the same Public Service Rule 030403 and 030302, thereby denying the Claimant fair hearing as guaranteed by Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and the Public Service Rules. In GENERAL BELLO SARKIN YAKI (RTD) & ANOR vs. SENATOR ABUBAKAR ATIKU BAGUDU & 2 ORS (2015) SC 722, the Supreme Court held that failure to comply with a precondition will render any such action taken thereby a nullity for failure to comply with such precondition.
Counsel also submitted that the actions of the Defendants/Applicants were done in bad faith which renders the Public Officers Protection Act inapplicable in the instant case. See INSPECTER-GENERAL OF POLICE vs. OLATUNJI (supra).
In conclusion counsel submitted that the Claimant/Respondent has made out a case requiring the Court to refuse the Defendant's application in the light of the affidavit evidence before the Court and the foregoing submissions.
Although the Defendants raised two grounds of objection, I have observed in the written address that the Defendants’ counsel formulated only one issue and canvassed arguments in respect of one ground of the objection only. The Defendants’ counsel did not address the ground of objection that the suit discloses no reasonable cause of action. This ground appears to have been abandoned. The Defendants counsel placed emphasis only on the ground that the Claimant’s suit is statute barred. In his arguments, the Defendants’ counsel relied on Section 2 (a) of the Public Officers Protection Act (hereinafter referred to as POPA), and submitted that the Claimant’s suit is statute barred as it was not filed within 3 months from the date the cause of action arose. After hearing the arguments of the counsels to the parties on this ground of the objection, the only issue which presents itself for determination in the application is:
Whether the Claimant’s suit is statute barred.
The provision of the said Section 2 (a) of POPA is 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 any public duty or authority, 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 or, or in the case of a continuance of damage or injury, within three months next after the ceasing thereof.”
The above provision of POPA limits the time within which actions can be instituted in court against public officers. It is to the effect that actions against public officers in respect of any act 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 the Act or law, duty or authority, must be instituted within 3 months after the act, or neglect or default complained of unless it is a continuing damage or injury in which case, the suit must be filed within 3 months after the damage or injury has ceased. It is the law that where a suit is not commenced against a public officer within the period prescribed by POPA, the Claimant’s right of action in respect of that cause of action is statute barred and the court do not have jurisdiction to entertain the suit. See IBRAHIM vs. J.S.C, KADUNA STATE (1998) 12 SC 20; NNAMDI AZIKIWE UNIVERSITY, AWKA vs. NWEKE (2008) All FWLR (Pt. 428) 343; KASANDUBU vs. ULTIMATE PETROLEUM LTD (2008) All FWLR (Pt. 417) 155 at 182.
In his written submissions, the Claimant’s counsel did not dispute the fact that the Defendants are public officers. Counsel has also not denied the fact that the Claimant filed this suit more than 3 months after the Claimant’s suspension from duty. The argument of counsel is however that there are certain factors present in the case which prevents the Claimant’s suit from being affected by POPA. Counsel mentioned that the suspension and non payment of the Claimant’s salary are continuing injury and that the Defendants acted in bad faith in the suspension of the Claimant. I will shortly come to these exceptions raised by the Claimant.
He pleaded in paragraph 4 of the statement of facts that he was served a suspension letter dated 20th April 2016 and in paragraph 5, it was pleaded that his salary was stopped immediately after being served with the suspension letter. Paragraph 8 of the statement of facts contain that during his suspension, the Claimant was served a query letter dated 18th July 2016. The Claimant consequently sought these reliefs: (1) A declaration that the suspension letter dated 20th April 2016 and query letter dated 18th July 2016 issued to the Claimant were illegal, null and void. (2) An order directing the Defendants to pay the Claimant all his salaries and other entitlements from 20th April 2016 when he was unlawfully suspended. From the pleading of the Claimant and the reliefs sought by him, it is evident that the cause of action of the Claimant in this suit was his suspension from work by the Defendants on 20th April 2016 and the query letter issued to him on 18th July 2016. The query was given to the Claimant after he had been suspended. The date of the query was on 18th July 2016. On the date of the query, the Claimant’s cause of action in this suit had fully accrued. The time allowed him by the POPA to institute this action against the Defendants started counting from the date of the query being 18th July 2016.
The Claimant filed this suit on 31st January 2017. This was a period of over 6 months after his cause of action had accrued. Going by the period prescribed in Section 2 (a) of POPA, the Claimant’s suit has become unmaintainable.
The Claimant’s counsel submitted however that the suit is not statute barred because the suspension and non-payment of the Claimant’s salary are continuing injury not caught by the limitation period. Let me state here that the suspension of the Claimant or the stoppage of his salary or the query issued to him by the Defendants, which are the basis of the Claimant’s claims in this action, do not constitute continuance of injury or damage. These acts of the Defendants occurred on their particular days and those days were the days the causes of action arose. The last of the acts occurred on 18th July 2016 and that day was the day the Claimant’s cause of action accrued. The facts of the Claimant’s case do not show a continuance or repeat of the acts of the Defendants complained of in this suit as to imply a continuance of injury or damage. See NNAMDI AZIKIWE UNIVERSITY, AWKA vs. NWEKE (2008) All FWLR (Pt. 428) 343. In that case, the Respondent was suspended on 22nd September 2004 and placed on half salary from the date of his suspension. He commenced the suit on 9 February 2005. The Respondent’s counsel argued that the suspension was a continuing act not caught by POPA. The Court of Appeal, at page 350 of the report held that the suspension started on a definite date which was the date of the cause of action for all intents and purposes and there is no basis to argue that the suspension was a continuous act not caught by the Public Officers Protection Act. My view in this case is that the Claimant’s cause of action, which accrued on 18th July 2016 was not a continuous injury or damage as to fall in the exception contemplated in Section 2 (a) of the POPA.
In his further contention that this suit is not caught by POPA, the Claimant’s counsel submitted in his written address that the action of the Defendants complained about was done in bad faith and the Defendants cannot, as a result, be protected by POPA. As rightly submitted by the Claimants counsel, abuse of office or bad faith are factors that deprives a party who would otherwise be entitled to protection under Section 2 (a) of the POPA. The POPA is designed to protect officers who act in good faith and does not apply to acts done in abuse of office. See OFFOBOCHE vs. OGOJA LOCAL GOVERNMENT (2001) FWLR (Pt. 68) 1051 at 1067. However, acts done in bad faith can disentitled the public officer of the protection of POPA only if the suit was commenced against the public officer within 3 months of the accrual of cause of action. See KASANDUBU vs. ULTIMATE PETROLEUM LTD (2008) All FWLR (Pt. 417) 155 at 182; EGBE vs. ALHAJI (1990) 1 NWLR (Pt. 128) 546 at 585. It was held in these cases that a public officer, who in the course of performance of public duty, does so maliciously or for private spite or in bad faith, has no protection under Section 2 (a) of POPA if the action is filed against him within 3 months. The question whether the Defendants acted in bad faith is premature at this stage the suit having not been commenced within 3 months from when the cause of action arose. Since the action was not filed within three months from the accrual of the cause of action, this court cannot inquire into whether bad faith has vitiated the protection afforded the Defendants under POPA.
Having considered all the facts relevant to the determination of the Notice of Preliminary Objection, I find that the Claimant’s suit is statute barred. The facts are clear that this suit was filed more than 3 months from the date the cause of action arose. The legal right to institute an action in court is not a perpetual right but a right limited by statutes. See NWAOGWUGWU vs. PRESIDENT FRN (2007) All FWLR (Pt. 389) 1327 at 1359. Therefore, after the date on which the applicable statute provides that legal proceedings cannot be taken, any person having a right of action can no longer institute the action as the action is statute barred and it affects the competence or jurisdiction of the court to entertain or determine the suit. The result is that this suit is incompetent and it is no longer maintainable. In the circumstance, the appropriate order to make is to dismiss the suit. Accordingly, the suit is dismissed. No order as to cost.
Ruling is entered accordingly.
Hon. Justice O. Y. Anuwe