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/299/2015
Emmanuel Njoba - Claimant/Respondent
Independent Corrupt Practices And
Other Related Offences Commission (ICPC) - Defendant/Applicant
E. J. Itodo for the Claimant/Respondent
Eko Ejembi-Eko, with him, I. W. Zom and E. K. Ejele for the Defendant/Applicant
By a Notice of Preliminary Objection (hereinafter referred to as NPO), filed on 26th September 2016, the Defendant prays this court to dismiss the Claimant’s suit on the ground that the suit is statute barred by virtue of Section 2 (a) of Public Officers Protection Act. In opposing the NPO, the Claimant’s counsel, Yusuf Abdullahi filed a written reply. Issues were joined on the NPO when on 24th October 2016, the Claimant filed a motion where he sought the leave of this court to amend the Complaint, statement of facts and other processes. The purpose of the amendment is to include in the pleadings the fact that the letter of termination of the Claimant’s appointment was dated 1st July 2015 but the effective date of the termination was stated to be 30 days from the date of the letter. Issues were also joined on the Claimant’s motion. The two applications were heard together on 11/10/2017 and adjourned to today for ruling on both applications.
The Defendant’s NPO seeks to have the Claimant’s suit dismissed because it was not filed within 3 months from the date of the cause of action as provided in Section 2 (a) of POPA. Since the NPO was filed first, it ordinarily ought to be considered first. However, it is has been the general practice of the courts that where there are two competing applications in a suit, one seeking to destroy the suit and the other seeking to correct or regularise the suit, the latter one should be taken first so that if it succeeds there will be no need to visit the former application. See NALSA & TEAM ASSOCIATES vs. N.N.P.C (1991) 8 NWLR (Pt. 212) 652; ATTORNEY GENERAL, FEDERATION vs. A.I.C. LTD. (1995) 2 NWLR (Pt.378) 388. Secondly, it is the law that in determining whether a suit is statute barred or not, the processes to which recourse should be had are the Writ and the statement of claim, in this case, the Complaint and the statement of facts. It is from these processes the cause of action, the date cause of action arose and the date the suit was filed can be deduced. See AMEDE vs. U.B.A (2009) All FWLR (Pt. 469) 479; JSF INVESTMENT LTD. vs. BRAWAL LINE LTD (2011) All FWLR (Pt. 578) 876 at 902. It is observed that the Defendant’s contention in the NPO is founded on the Complaint and the averments in the Claimant’s statement of facts filed on 9/10/2015. The Claimant has now put up an application to amend these processes. There is the need to determine which of the statement of facts of the Claimant; the initial one or the amended; is to be examined in determining the NPO by first considering the Claimant’s motion for amendment. Therefore, notwithstanding that the Defendant’s NPO was filed first, in the circumstances of the applications under consideration however, I will first determine the Claimant’s motion for amendment.
In the motion, the Claimant prays for the following reliefs:
1. An order granting leave to the Claimant to amend the form of the Complaint, statement of facts and ancillary processes as reflected in attached Exhibit A.
2. An order deeming the clean copies of the amended processes as duly and properly filed.
3. And for such other orders as the court may deem fit to make.
In the affidavit in support of the motion, deposed to by the Claimant himself, it was averred that the Claimant’s counsel, while preparing the originating processes, forgot to state in the statement of facts the effective date of termination of the Claimant’s appointment, hence, there is need to include in the pleadings the fact that the letter of termination of the Claimant’s appointment was dated 1st July 2015 but the effective date of the termination was stated to be 30 days from the date of the letter. The Claimant filed a clean copy of the amended Complaint, Statement of Facts and other accompanying processes. In the written address in support of the motion, the Claimant’s counsel raised a sole issue for determination to wit;
Whether the Claimant/Applicant has made out a case for grant of relief sought in the application
Counsel submitted that as a rule, parties may apply to the court for leave to amend their pleadings at any time before judgment is given in a matter. See Order 3(3) of the Rules of this court and ADETUTU vs. ADERANFUNMU (1984) 1 SCNLR 515 at 523 – 524. In exercise of such power, the court is guided by consideration of justice of the case and the rights of the parties before it as well as the need to determine the real question or questions in controversy between the parties. According to counsel, in the instant case, amendment of an originating process or pleadings can be done without injustice to the other side, it ought to be allowed. See ADEKEYE vs. AKIN-OLUGBADE (1987) 3 NWLR (Pt. 60) 214 and KODE vs. YUSUF (2001) 4 NWLR (Pt 703) 392.
Counsel referred the court to the affidavit in support of this application which shows that the date i.e. the effective date of the termination of appointment of the Claimant which formed the subject of the instant amendment is relevant to the present proceedings and would aid the court to determine the date of the commencement of the termination of the Claimants appointment and decide the real issue in controversy between the parties, counsel referred the court to the case of EGWA vs. EGWA (2007) 1 NWLR (Pt. 1014) 71 CA, where it was decided that the amendments made before trial commences cannot be impeached. See also A.G. EDO STATE vs. JESSICA TRADE CO. LTD (1999) 5 NWLR (Pt. 604) 500 and BENDEL INSURANCE CO PLC. vs. B.C.M FINANCES (1997) 8 N.W.L.R (Pt. 518) 597.
Relying on the authority of ADETUTU ADESANYA vs. ALHAJI S.D. ADEROHUNMU & ORS (2000) 6 S.C. (Pt. ii) 18 @ 31, counsel submitted that it is the duty of the court to aim at doing substantial justice and allow formal amendment(s) as are necessary for the ultimate achievement of justice and the end of litigation. The primary basis upon which the court allows an amendment of pleadings was stated by Oputa JSC in the case of ADEKEYE vs. AKIN-OLUGBADE (1987) 3 NWLR (Pt. 60) 214 where he said
“Blunders may occur and nowadays they do occur with disturbing regularity but all the same the courts should not be stampeded into chasing the shadows of these blunders rather than facing the substances of the justice of the case.”
According to counsel, this is a proper case for which the courts discretion can appropriately be exercised in the Claimant’s favour. Counsel urged the court to grant the application as doing so will not in any way prejudice the Defendant.
The Defendant opposed the motion and filed a counter affidavit deposed to by Alice Adie, litigation clerk in the office of the counsels to the Defendant. It was averred in the counter affidavit that the Defendant’s NPO challenging the jurisdiction of this court to entertain the Claimant’s suit was pending when the Claimant filed the instant motion with a view to shift the date of the accrual of the Claimant’s cause of action. According to counsel, the motion is an abuse of court process and will overreach the Defendant. In the accompanying written address in support of the counter affidavit, counsel to the Defendant, Mr. Eko Ejembi-Eko, submitted that the main aim of an amendment is to cure all discernible defects in pleadings and to settle the real controversy between the parties in order to do substantial justice between them. See ALSTHOM S.A. vs. SARAKI (2000) FWLR (Pt. 28) 2267 @ 2284 – 2285 paras H-A, Per Ejiwunmi JSC. Counsel submitted that the amendment sought by the Claimant is aimed at no other thing but withholding facts and misleading this court which is evident in the following ways:
a. In paragraph 26 of the Statement of Facts filed alongside the form of Complaint on the 9th day of October, 2015, it was stated inter alia that the Claimant appointment with the defendant was terminated on 1st day of July 2015.
b. In Paragraph 32 and paragraphs 1-4 of the Claimant’s claim against the Defendant, the Claimant made reference to his appointment being terminated on the 1st day of July 2015 and no other date.
From the reading of paragraphs 26, 32 of the Statement of Facts and paragraphs 1-4 of the Claimants claim flowing from the Claimant’s statement of facts, it is clear that the Claimants appointment with the Defendant terminated on the 1st day of July 2015. Also, a reading of paragraphs 1-4 of the Claimant’s claims endorsed to the Form of Complaint also reveals that not only was Claimant’s appointment with the Defendant terminated on the 1st of July 2015 but all the reliefs he seeks from the court against the defendant flows and commences from the 1st day of July 2015 and no other date. Counsel submitted that it was surprising that in paragraphs 26 and 27 of the proposed amended statement of claim, the Claimant through his counsel has suddenly shifted the date (on which he alleged that his appointment was terminated with the Defendant) from the 1st day of July 2015 to the 31st day of July 2015 (paragraphs 26 and 32 of the statement of facts and paragraphs 1-4 of the Claimants claim against the Defendant respectively.)
Further, Counsel submitted that this action of the Claimant and his counsel of shifting these dates is a clear attempt to defeat the defence of limitation raised by the Defendants in their Notice of Preliminary Objection and argued in the Written Address in support of same. Also, counsel submitted that it is a clear demonstration of lack of good faith on the part of the Claimant and his counsel. The Court of Appeal frowned at this practice in the case of MOBIL PRODUCING NIG UNLTD vs. UWEMEDIMO (2006) All FWLR (Pt. 313) Pg. 116 @ 132 Para D-E per Chukwuma- Eneh (delivering the lead judgment) inter alia.
“It is settled law that where the bringing of an action is governed by limitation law, any amendment to the action has to be carried out in such a manner as not to remove the case within the limitation period.”
Counsel brought the court’s attention to their earlier argument written address in support of the Defendants preliminary objection which they held on to that the action of the Claimant is statute barred by virtue of Section 2 (a) of the Public Officers Protection Act. Counsel submitted that the Claimant through his counsel is now introducing new facts in an attempt to deliver his suit from the obvious effect of the limitation statute and that this amendment is coming after the preliminary objection was served on them. It was the submission of counsel that this amendment which seeks to introduce new facts and which attempts to defeat the defence of limitation raised by the Defendants was brought mala fide and same is an abuse of the process of the court. The supreme court ‘s decision in the case of ALSTHOM S.A. vs. SARAKI (2000) FWLR (Pt. 28) pg 2267 @ 2282 Para H-A per Karibi Whyte JSC stated inter alia:
“The principles taken into account in considering whether an application for amendment should be granted inter alia, the attitude of the parties, and the nature of the amendment sought in relation to the suit, the question in controversy, the time when the amendment was being sought. Where the amendment was being sought mala fide or in the amendment, even if granted will not cure the defect in the processing the Court will not grant it. See Lagunju Abasi vs. Raji Labayi (1958) WRNLR 2
Counsel submitted that an application for amendment such as this, ought to be refused, as it will bring injustice to the other side, it is brought mala fide; it is misleading and an abuse of process of the court. Counsel also referred the court to the case of IGWE & ORS vs. KALU & ORS (2002) 9 NSCQR Pg. 386.
According to counsel, it is obvious from the Form of Complaint and Statement of Facts filed by the Claimant that the incident which gave rise to the cause of action upon which the Claimant initiated this suit took place on the 1st day of July 2015 and not on the 31st day of July 2015, but the Claimant through his counsel wants to shift the dates. The sudden shift is actuated by improper motive; it is misleading and an abuse of court process. Counsel urged the court to exercise its discretion in favour of the Defendants and dismiss the Claimant’s application with substantial costs.
The Claimant filed a better and further affidavit and a reply on points of law. I will not go through the trouble of setting out the content of these processes but they shall be referred to in the course of this ruling if necessary.
Let me emphasise that the courts have the inherent powers to allow amendments to pleadings of the parties at any stage of the proceedings. The exercise of this power to allow amendment is at the discretion of this court which discretion is to be exercised in favour of doing justice in each particular case. See IGWE vs. KALU (2002) FWLR (Pt. 97) 677 at 712. The courts will normally grant leave to a party to amend his pleadings unless-
i. The application for amendment is made mala fide,
ii. It will entail injustice to the respondent,
iii. The proposed amendment will cause undue delay or is irrelevant or useless or merely raises a technical point,
iv. The amendment has done some injury to the respondent which cannot be compensated for by cost,
v. The application is designed to overreach the respondent,
vi. The amendment will result in a party being confronted with an entirely new case at an extremely late stage of the trial or is in conflict with the evidence already given in the trial.
See AKANINWO vs. NSIRIM (2008) All FWLR (Pt. 410) 610 at 658; IGWE vs. KALU (SUPRA) at 717; LAMBU vs. ISYAKAU (2012) All FWLR (Pt. 640) 1295 at 1329-1331.
The Defendant’s complaint against the amendment in the counter affidavit is that the amendment is an abuse of court process and overreaching the Defendant. The reason why the Defendant made the averment is that the motion was filed during the pendency of the Defendant’s NPO and the Claimant seeks to shift the date of his cause of action in order to defeat the NPO. I have observed that the Defendant has not filed any statement of defence in this suit. I do not see how it will be overreached by the amendments sought to be made by the Claimant. Furthermore, the fact that the Defendant has filed an NPO which seeks to dismiss the Claimant’s case is not a reason to refuse an amendment to the statement of facts if it has merit. Even at that, the position of the law, as I have earlier stated, is that it is better to grant an application which seeks to cure a defect in a suit to save it than the one which seeks to destroy the suit. The Defendant has not advanced any serious reason for the court to refuse the amendment sought by the Claimant.
I have seen the amendments made by the Claimant and I have considered the reason given for making the amendments. It is trite law that in determining whether to grant or refuse leave to amend pleading, the court is to focus at doing substantial justice to all the parties in the matter. Therefore, the whole essence of amendment of pleading is to enable the court decide the rights of the parties and not punish them for mistake they make in the conduct of their cases. An amendment of pleading is allowed for the purpose of determining the real question in controversy between the parties and it can be made at any stage of the proceedings. See NIGERIAN DYNAMIC LTD vs. DUMBAI (2002) FWLR (Pt. 105) 823 at 831. Having considered the circumstances of the motion, I see no reason to refuse the application. In my view, it is in the interest of justice to grant the motion. Accordingly, leave is granted to the Claimant to amend the Complaint, statement of facts and other processes. The amended Complaint, statement of facts and other processes filed on 24th October 2016 are deemed properly filed and served.
I will now turn to consider the Defendant’s NPO. The Defendant sought this court to dismiss this suit on the ground that it is statute barred by effect of Section 2 (a) of the Public Officers Protection Act. In the written address in support of the NPO, the Defendant’s counsel, Eko Ejembi Eko, submitted that the Claimant’s cause of action arose on 1st July 2015 when he received the letter of termination of his employment and he filed this suit on 9th October 2015. The learned counsel for the Defendant cited Section 2 (a) of POPA and argued that by that provision, the Claimant’s suit is statute barred as the Claimant did not file the suit against the Defendant within 3 months from the date of his cause of action. The Defendant’s counsel further submitted that the court does not have jurisdiction to entertain the Claimant’s suit and should be dismissed. Counsel cited F.R.I.N. vs. GOLD (2007) All FWLR (Pt.380) 1444, DAUDU vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2003) FWLR (Pt. 176) 687, IBRAHIM vs. J.S.C. KADUNA STATE (1998) 14 NWLR (Pt. 584) 1, EGBE vs. ALHAJI (1989) 1 NWLR (Pt. 128) 564, among other authorities, in support of his arguments.
In opposing the NPO, the Claimant’s counsel, Yusuf Abdullahi, filed a written reply where counsel submitted that the Claimant’s suit is not statute barred. According to counsel, although the termination letter is dated 1st July 2015, the effective date of the termination of the Claimant’s employment was 30 days after the date of the latter which period falls on 1st August 2015. The Claimant’s cause of action arose on 1st August 2015 which period when compared with 9th October 2015, being the date the suit was filed, will reveal that the suit was filed within 3 months.
The starting point in determining the NPO is to examine the provision of Section 2 (a) of the Public Officers Protection Act (POPA). It provides 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 effect of the above provision of the POPA is 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. Where the suit is not commenced within the prescribed period, 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; 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. The provision of Section 2 (a) of POPA has limited the time within which action can be commenced against a public officer. It is the law that where a statute prescribes for the bringing of an action within a prescribed period of time, proceedings shall not be brought after the time prescribed by the statute. This is because 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.
There is no dispute in this application that the Defendant is a public officer. The Claimant’s pleading discloses that the Defendant has been sued in this action in respect of the termination of the Claimant’s employment which termination the Claimant alleged to be wrongful. It is not in doubt that the action against the Defendant is in respect of its alleged default in its public duty or authority. What remains to be done at this point is to find if the Claimant filed this suit against the Defendant within 3 months from the date his cause of action arose. In order to determine whether the Claimant’s suit is statute barred, there is the need to determine when the cause of action arose and when this suit was filed.
As I have already mentioned above, the Claimant’s cause of action in this suit is the termination of his employment. The parties are also agreed on that fact. The area of disagreement between the parties is the particular date the cause of action arose. While the Defendant contends that the Claimant’s cause of action arose on 1st July 2015 being the date of the letter terminating the Claimant’s employment, the Claimant contended that the date of his cause of action, as stated in the letter of termination, is the effective date of the termination which was 30 days from the date of the termination letter. According to counsel to the Claimant, 30 days from date of the letter was 1st August 2015 and this was the date of the cause of action. There is need at this point to resolve the dispute as to the date the cause of action arose.
In paragraphs 26 and 27 of the amended statement of facts, the Claimant averred that he was given a notice of termination of his appointment dated 1st July 2015 and it was stated in the letter that the termination takes effect 30 days from the date of the letter. This letter has been frontloaded by the Claimant and it is number 8 in the list of documents. It is dated 1st July 2015 terminating the Claimant’s employment with effect from 30 days from the date of the letter. By calculation, 30 days from 1st July 2015 was 1st August 2015. That is to say the termination of the Claimant’s employment was with effect from 1st August 2015. The actual date on which the Claimant’s employment stands terminated was on 1st August 2015. This was the date his cause of action arose. A cause of action is said to accrue when it can be said or there exist in the person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the Claimant to succeed in his claim. See BANK OF THE NORTH vs. GANA (2006) All FWLR (Pt. 296) 862 at 881; DAWODU vs. AJOSE (2011) All FWLR (Pt. 580) 1334 at 1348. The Claimant’s cause of action accrued on the date his employment terminated, that is 30 days from the date of the letter which was on 1st August 2015. From that date, all facts have happened which gave the Claimant a cause of action to challenge the termination of his employment. The time to file an action against the Defendant started counting against the Claimant from that day.
It is clear from the record that the suit was filed on 9th October 2015. There is no dispute about this. The period from the date of the termination of the Claimant’s employment and the date this suit was filed is a period of 2 months and 8 days. This period is less than 3 months. It thus implies that the Claimant filed this suit within 3 months from the date his cause of action arose. I find that the suit is not statute barred. Therefore, the Notice of Preliminary Objection has no merit and it is accordingly dismissed. No order as to cost.
Ruling is entered accordingly.
Hon. Justice O. Y. Anuwe