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/271/2015
Mr. Nwolisa Bond Chukwudozie - Claimant/Respondent
National Agency for Food and Drug
Administration and Control - Defendant/Applicant
Benjamin Nwosu for the Claimant/Respondent
Ademola Adewoye, with him, Fidelis Imafidon, for the Defendant/Applicant
In a Notice of Preliminary Objection filed on 27th February 2017, the Defendant prays for an order of this court dismissing or striking out this suit for want of jurisdiction. The two grounds relied on by the Defendant for the prayers sought in the Notice of Preliminary Objection are the following: (i) The Claimant has no reasonable cause of action; and (ii) The suit is statute barred. The learned counsel for the Defendant filed a written address in support of the NPO on 27th February 2017. In opposing the NPO, the counsel to the claimant filed a reply on 7th March 2017.
In this ruling, I will consider the 2nd ground of the Notice of Preliminary Objection first. That is whether the Claimant’s suit is statute barred? This ground of the NPO is covered in issues 2 and 3 of the written address of the Defendant’s counsel and in the 2nd issue of the reply of the Claimant’s counsel. In paragraph 3.7 and 3.8 of his address, the Defendant’s counsel cited Section 2 (a) of the Public Officers’ Protection Act to submit that the Defendant falls into the category of public officer but this suit was not filed within 3 months from the time the Claimant’s cause of action arose. According to counsel, the Claimant’s cause of action arose on 30th April 2003, as pleaded by the Claimant in paragraph 9 of the statement of facts, but the suit was filed on 25th July 2016, which was a period more than allowed by the Act to file this suit against the Defendant. The Defendant’s counsel also relied on Section 7 of the Limitation Act in his argument that the Claimant’s suit is statute barred. It was counsel’s submission that the employment of the Claimant was a simple contract and any suit on such a matter ought to be commenced within 6 years of the cause of action. The date of the Claimant’s cause of action and the date this suit was filed was a period of more than 6 years. Counsel concluded that the Claimant’s suit is therefore statute barred.
In reaction to this ground of the objection, the Claimant’s counsel submitted, in paragraphs 3.2.1 to 3.2.5 of his reply that the complaint of the Claimant in this suit is his suspension by the Defendant without pay since March 2003 till now. According to counsel, citing in support the case of CBN vs. AMAO, the cause of action of the Claimant is renewed every month the salaries and allowances of the Claimant are withheld. The withholding of his salaries and allowances since 2003 constitutes a continuance of damage, as such, neither POPA nor the Limitation Act would not apply to bar the suit.
The Defendant’s preliminary objection is predicated on the provision of Section 2 (a) of Public Officers Protection Act and Section 7 of the Limitation Act. These legislations are limitation statutes. They limit period within which certain actions must be instituted in court. The provision of Section 2 (a) of Public Officers’ Protection Act is to the effect that any action 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. On the other hand, Section 7 of the Limitation Act provides that action founded on simple contract shall not be instituted after 6 years from the date on which the cause of action accrued. It is trite that where a suit is not commenced within the period prescribed by statute, the Claimant’s right of action in respect of that cause will be statute barred and the court will no longer have jurisdiction to entertain the suit. See IBRAHIM vs. J.S.C, KADUNA STATE (1998) 12 SC 20; EGBE vs. ALHAJI (1990) 3 S.C (Pt.1) 63.
The Claimant’s counsel did not dispute the fact that the Defendant is a public officer. He also did not dispute the fact that the Claimant filed this case more than 3 months after the cause of action had arisen. Counsel’s contention however is that the Claimant’s cause of action is a continuing damage which has not ceased at the time the suit was filed. In paragraphs 5, 6, 7 and 11 of the statement of facts, the Claimant pleaded that while he was in the Defendant’s employment, he was issued a query dated 25th February 2003 and he submitted a written reply to the query on 7th March 2003. By a letter dated 21st March 2003, the Defendant suspended the claimant to enable proper investigation of the allegations against the Claimant. He has been on suspension from 21st March 2003 without pay till date. In paragraph 14, the Claimant averred that the Defendant has refused to reinstate him and pay him his outstanding salaries and entitlements. Having examined the facts of the Claimant’s case and the reliefs he sought in the suit, it is clear to me that his cause of action is his suspension from work without pay. This happened on 21st March 2003. That was the day his cause of action arose. By Section 2 (a) of the Public Officers’ Protection Act POPA, the Claimant ought to have commenced this suit within 3 months from that date. This suit was filed on 25th July 2016, which was a period of 13 years and 4 months from the date the cause of action arose.
While I agree with the Claimant’s counsel that continuance of damage or injury is an exception to the application of Section 2 (a) of POPA, I am however unable to agree with counsel that the Claimant’s cause of action in this suit is a continuance of damage or injury. Continuance of injury or damage, contemplated in Section 2 (a) of the Public Officers Protection Act, means the continuance of the act which caused the injury or damage and not merely the continuance of the injurious effect of the act. See OLAOSEBIKAN vs. WILLIAMS (1996) 5 NWLR (Pt. 449) 437; OBIEFUNA vs. OKOYE (1961) All NLR 357. In this instant case, the Claimant was suspended on 21st March 2003 without pay and his salary was stopped forthwith as a result. The act of the Defendant in suspending the Claimant without pay happened on a specific day and the act has not been shown by the Claimant to have been repeated thereafter. From the 21st March 2003, all the facts necessary to enable the Claimant approach the court have happened and the time started counting against him from that day. In NNAMDI AZIKIWE UNIVERSITY, AWKA vs. NWEKE (2008) All FWLR (Pt. 428) 343 at 350, the Court of Appeal held, in the following statement, that the suspension of an employee cannot constitute continuing injury:
“From the facts of this case, it is clear that the respondent was suspended on 22nd September 2004 while he commenced the suit on 9 February 2005, a period of over four months after the cause of action. This is a clear violation of the Public Officer Protection Act. There is no basis for the argument of the learned counsel for the respondent that the suspension was a continuous act not caught by the Public Officers Protection Act. The suspension started on a definite date which was the date of the cause of action for all intent and purposes. The respondent had a duty to ensure he acted timeously if he was to hold the appellant responsible for his suspension”.
The Claimant’s counsel, citing the case of CBN vs. AMAO, argued that non payment of the Claimant’s salaries and allowances since 2003 to date to the Claimant is a continuing injury which is not affected by POPA. The Claimant has disclosed in his averments that he was suspended without pay since on 21st March 2003. He did not make any averment to the effect that any parts of the monthly salaries were, at any time subsequently, paid to him thereby leaving outstanding balances of the monthly salaries. The facts of the CBN vs. AMAO case are thus clearly different from the facts and circumstances of this case. In CBN vs. AMAO, the respondents’ cause of action in that case was the default of the appellant to pay the harmonized pension as agreed from month to month. The appellant was paying monthly pensions to the respondents less than what is provided in the white paper and circulars every month thereby leaving part of their entitled monthly pension unpaid. It was held that the cause of action in the case is a continuing injury in that it arises every month when the appellant pays pension less than the full harmonized pensions to the respondents. That authority will not apply to this case. From the facts of the Claimant’s case, I have not seen any element in the Claimant’s cause of action which could be taken to be a continuing injury or damage as contemplated in Section 2 (a) of POPA.
In conclusion, the Claimant filed this suit 13 years and 4 months after his cause of action arose. It is clear from the foregoing that this suit was filed more than 3 months from the date the cause of action arose. The Claimant’s contract of employment comes within the subject matter contract covered in Section 7 of the Limitation Act. The suit was also not filed within 6 years as required in the Limitation Act. The Claimant did not commence this suit against the Defendant within the period prescribed in both the POPA and Limitation Act. By effect of these statutes, the Claimant’s suit is statute barred having been filed outside the time limited by Law. It is trite law that suits instituted outside the time stipulated by the statute of limitation is statute barred and cannot be entertained by the courts. In other words, where the law provides for the bringing of an action within a prescribed period of time, proceedings shall not be brought after the time prescribed by the statute. An action brought outside the prescribed period is contrary to the provision of the law and does not give rise to a cause of action. See ELEBANJO vs. DAWODU (2006) All FWLR (Pt. 328) 604; INEC vs. OKORONKWO (2009) All FWLR (Pt. 488) 227 at 247. This suit is not competent and this court lacks jurisdiction to entertain same in the first place. In the circumstance, the appropriate order to make at this point is to dismiss the suit. The 1st ground of the objection, which is that the suit discloses no reasonable cause of action, is no longer relevant nor can it be considered in the circumstance. Since the Claimant’s cause of action is statute barred, the question whether the cause of is reasonable or not is immaterial. In the result, this suit is hereby dismissed. No order as to cost.
Ruling is entered accordingly.
Hon. Justice O. Y. Anuwe