IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
Before His Lordship:-
HON. JUSTICE E.D. E ISELE - JUDGE
DATE: 28th September, 2020 - NICN/KN/59/2016
DR HASSAN USMAN JAMO - CLAIMANT
1. DR RABI JIBRILLA MUHAMMAD
(PROVOST F.C.E KANO)
2. FEDERAL COLLEGE OF
3. GOVERNING COUNCIL, FEDERAL - DEFENDANTS
COLLEGE OF EDUCATION, KANO
4. HAJIYA AISHA IBRAHIM
(REGISTRAR F.C.E KANO)
REPRESENTATIONS: Claimant absent. Defendants present. Aminu Suleiman for the Claimant.
1. The Claimant to this suit originally commenced this action by the Writ filed on the 24th of November, 2016. And by the amended writ filed on the 12th of May, 2017, the Claimant claimed the following:
1. A Declaration that the illegal termination of appointment of the Claimant with the 2nd Respondent by the 1st and 4th Respondents via a letter reference No FCEK/PF.1445/VOL.1/87 and dated 25th September, 2013 without reference to the laws governing Claimant’s appointment with 2nd Respondent is wrongful, null and void and has no legal effect whatsoever as it is contrary to the laws and regulations governing the terms and conditions of service and the principles of natural justice, equity and good conscience.
2. A Declaration that the refusal and/or failure by the Respondents to reinstate the Claimant after pleas from him and his lawyers is tantamount to continued perpetration of the wrongful act of terminating the Claimant’s appointment illegally/wrongfully with the 2nd Respondent by the connivance of the 1st and 4th Respondents which is mala fide, devoid of fair hearing, unconstitutional, void ab initio and of no legal effect whatsoever.
3. An Order directing the 2nd Respondent to re-instate the Claimant back in her employment while also directing the 2nd Respondent to pay the Claimant all his salaries, allowances and entitlements from September, 2011 and then through the entire period of the purported termination to the date of his re-instatement.
4. The Claimant also claims that as a result of the illegal/wrongful termination of his appointment suffered denial, deprivation, discrimination and failure by the Defendants to listen to his plight leading Claimant to expend his hard earned money from sale of his properties and what he earned as a working student and assistance from family members in the total sum of ₦32,660,500.00 (Thirty Two Million Eight Hundred and Sixty Thousand, Five Hundred Naira) which the Claimant wants this Honourable Court to order the Defendants to refund to him jointly and severally.
1. Cost of Registration at UPM University Malaysia
and expenses from September to December, 2011. ₦750,000.00
2. Tuition/Registration at UTHM University
for (7) Seven Semesters plus 6 months extra. ₦6,522,500.00
3. Housing/Hotel accommodation for 42 months ₦4,394,000.00
4. Feeding and Medical expenses ₦5,500,000.00
5. Transport Expenses for Claimant & Family ₦2,394,000.00
6. Internet Charges in the course of study ₦3,500,000.00
7. Child registration at Malaysia School and Wife
Post natal and ante natal in Malaysian Hospital ₦2,800,000.00
8. Local running and out of pocket expenses
Plus unclassified cost ₦3,300,000.00
9. Professional charges to my legal practitioner. ₦3,500,000.00
5. The Claimant also claims his money that the Defendants are holding on to in the sum of $3,000 (Three Thousand US Dollars) or the naira equivalent due to the Claimant as his share of payment for participating in Innovator of Tomorrow (IOT) awarded to him by the Federal Ministry of Education in 2010.
6. An Order of Perpetual injunction restraining the Respondents from dismissing, terminating or in any way tampering with the Claimant’s appointment and right to work with the 2nd Respondent without just cause until he attains his retirement age.
7. The Claimant claims the cost of this action.
2. This writ was accompanied by the Claimant’s witness statement on Oath, statement of facts (claim) and documents to be relied on at the trial.
This case first came before me on the 18th of October, 2017. On that date several motions were heard and determined. The first was that dated 4th March, 2017 for extention of time to file a counter affidavit and written address which was withdrawn by the Claimant and was consequently struck out. The second was that filed on the 23rd of February, 2017 for leave of Court to amend the Claimant/Applicant’s processes being the writ of summons and the statement of claim which the Claimant applied to withdraw and was equally struck out.
3. The third motion was that filed on the 12th of May, 2017 for extention of time for the Claimant to file and serve a counter affidavit and a written address opposing the Preliminary objection. This Motion was not opposed by the Defendants and the Motion was granted. The 4th Motion was that filed on the 24th of February, 2017 for amendment of the Claimant’s statement of claim, which was not opposed by the Defendants and was granted.
4. The Defendants through Counsel then moved the Notice of Preliminary Objection filed on the 18th of January, 2017. The Claimant as Respondents responded to the Notice of Preliminary Objection. On the 26th of October, 2012 this Court delivered a Ruling which in effect was that further Ruling on the Preliminary Objection was to form part of the judgment after hearing of the matter and ordered the matter proceed to trial. The Defendants being dissatisfied appealed to the Court of Appeal Kaduna Division, which Court in its judgment of 24th May, 2019 ordered that the case be transferred back to the lower Court to hear the Preliminary Objection.
5. Now, in the Preliminary Objection filed on the 18th of January, 2017 the objectors prayed the following:
a) For an Order striking out or dismissing this suit for lack of jurisdiction.
b) And for such Further Orders as the Honourable Court may deem fit to make in the circumstance.
In the affidavit in support of the Preliminary objection, the deponent Bala Muhammad Tanko, a civil servant, in the 2nd Defendant, a higher Executive Officer by which fact he was familiar with the facts of the case. In his affidavit, he averred at paragraphs 4 to 11 that the Claimant/Respondent applied for study leave with pay on 3rd May, 2011. To which the 2nd Defendant replied the Claimant/Respondent that ETF does not sponsor PhD abroad. That on the 19th of July, 2011 the Claimant/respondent reapplied for study leave without pay to which the 2nd Defendant refused approval on the ground that the Claimant/Respondent’s department was seriously understaffed.
6. The Deponent averred further that the 1st Defendant was informed on the 19th of October, 2011 by the Head of Department of the Claimant, that the Claimant/Respondent had left for further studies and his salaries were then stopped on the 19th October, 2011 by the 2nd Defendant. Following this development, the Registrar recommended that the Claimant/Respondent be dismissed in line with Chapter 3 subsection (030402) and other relevant rules. And that on the 25th of September, 2013, the Claimant/Respondent’s appointment with the 2nd Defendant was terminated on the ground of absconding from duty.
7. The Defendant averred further that on the 4th of August, 2015 the Claimant/Respondent wrote a Complaint letter to the Defendant. And on the 19th of November, 2015, the Claimant wrote another letter of complaint. Both letters were marked as Exhibits I and J respectively. To these the Deponent states that the Management of the 2nd Defendant replied the Claimant/Respondent in the letter dated 19th November, 2016, marked as Exhibit K informing him that the Management’s decision terminating his appointment stands. That the Claimant’s Solicitor on the 5th of February, 2016 wrote (Exhibit L) and the 2nd Defendant replied Exhibit L through Exhibit M.
8. The Defendants averred that they were served with the Claimant’s processes (originating processes) filed on 29th September, 2016 on the 6th of October, 2016. The Defendants consequently maintain that the length of time between the date of termination of appointment being 25th September, 2013 and the date of filing of the suit 29th September, 2016 is 3 years and 4 days.
9. That the length of time between the date the 1st Complaint letter was written by the Claimant/Respondent to the 2nd Defendant being 4th August, 2015 and the date of filing of the suit on 29th September, 2016 is 1 year and 56 days. That the length of time between the date the 2nd complaint letter was written by the Claimant/Respondent to the 2nd Defendant being the 19th November, 2015 and the date of filing the suit i.e. 24th November, 2016 is 10 months and 20 days. That the length of time between the date Management of the 2nd Defendant replied the Claimant/Respondent letter of 19th November, 2015 informing him that the Management’s decision terminating his appointment stands, that is the 17th December, 2015 and the date of filing of the suit 24th November, 2016 is 9 months and 12 days. That the length of time between the date the Claimant/Respondent’s Solicitors wrote a letter requesting the Defendant to reinstate the Claimant/Respondent being 5th February, 2016 and the date of filing the suit 24th November, 2016 is 7 months 24 days. That the length of time between the date the Defendant’s legal officer replied the Claimant/Respondent’s letter of 5th February, 2016 that is 22nd February, 2016 and that the date of filing the suit 24th November, 2016 is 7 months and 7 days. The Deponent averred that he was informed by the Defendant’s Counsel that in any of the circumstances listed above the Claimant/Respondent did not institute this action within 3 months from the accrual of the cause of action.
THE CLAIMANT’S COUNTER AFFIDAVIT
10. In the Counter affidavit deposed to by the Claimant himself he averred amongst others that paragraphs 4 and 5 of the affidavit in support of the Preliminary objection may be true but contrary to paragraphs 5 of the affidavit. That the Objectors i.e. the Defendants sponsored two persons from the same school of sciences to Malaysia for PhD studies and the two persons applied much later after his application.
In the words of the Claimant/Deponent in paragraph 3, he averred that:
“That paragraph 6 of the affidavit in support of the preliminary objection is true, that the second application was made after I had expended much of my saving, proceeds from sales of assets and assistance from relatives and friends; the Applicants/Defendants granted approval to two of my colleagues Binta Isyaku and Ibrahim Alhaji Lawal, with full packages to study PhD in the same country I got admission.”
11. He averred that paragraph 7 of the affidavit in support of the Preliminary objection is not correct because the Council of the 2nd Defendant/Applicant met on 25th August, 2011 and he had no way of knowing what was decided till after he departed Nigeria on the 4th of September, 2011 but the news that filtered to his hearing before he left Nigeria was that of the three of them from the school of sciences only one was not approved till he was in Malaysia and he did not get the written communication.
He maintained that he had approached the establishment officer of the 2nd Defendant as to whether he could apply for deferment but he was advised against it.
DETERMINATION OF THE PRELIMINARY OBJECTION
12. Now the preceding parts of this Ruling consist of the crux of the deposed averments by the Applicant and the Respondents. In the written address in support of the Preliminary objection the Applicant formulated a sole issue for determination.
“Whether or not the Court has jurisdiction to entertain this suit since this suit is statute barred by virtue of the Public Officers Protection Act (POPA)”
13. Now, it is salutary to say that the above cited law applies to the parties in this suit by virtue of the settled law from the pronouncement of the Courts. See ABUBAKAR 7 ANOR V. GOVERNOR OF GOMBE (2002) 17 NWLR PART 797, ASO TIM DOZ INVESTMENT CO LTD V. ABUJA MARKETS MANAGEMENT LTD & ANOR (2016) LPELR – 40367 (CA).
Section 2 (A) of the Public Officers Protection Act provides:
“Where any action, prosecution or other proceedings 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 or Authority, the following provisions shall have effect.
Limitation of time.
a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced 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 commence within three months after the discharge of such person from prison.”
14. The Objectors cited the case of MULIMA V. USMAN (2014) 4 (PART 4) SCNJ 592 @ 630 – 631 where the Supreme Court held:
“. . . It follows closely that in considering whether an action is statute barred, the Court should confine itself to the averments in the writ of summons and the Statement of Claim which allege the factual situation that gave rise to the cause of action.”
The Court had stated further
“. . . That cause of action normally arises as soon as the combination of facts giving right to complain accrued or happened.”
In response, in the written address of the Claimant in support of the Counter affidavit, a sole issue was formulated for determination:
“Whether the Claimant made out a case for this Court to hear and determine i.e. Whether the jurisdiction of this Court has been properly invoked?”
15. The Claimant as Respondent argued that the law is trite that for issue of limitation of action to be determined by a Court of Law all the Court needs to do is to ascertain from the writ of summons and the statement of claim of the Plaintiff when the cause of action came up. This is usually done by comparing the date the cause of action with the date of the writ of summons in the action was filed. If the date of the writ is beyond the period allowed by limitation law, then the action is said to be statute barred citing OYETOKI V. NIGERIA POSTAL SERVICE (2010) ALL FWLR (PART 5040 1572 @ 1585 – 1586 PARAS GA.
16. The Respondent argued that it is worthy of note that the Objectors either knowingly or inadvertently failed to cite a single authority on whether or not the provision of Section 2 (1) of the Public Officers Protection Act applies to case of contract of employment. That it is noteworthy that a single authority was not cited on whether or not the provisions of the Public Officers Protection Act is a blanket rule which allows for no exceptions and whether such exception applies to vest jurisdiction on the Court based on the facts and circumstances of the case.
The Respondent relied on INEC V. OGBADIGBO L.G.A (2015) ALL FWLR (PART 812) 1586 @ 1608 PARAS E – F where the Court held that
“One of such exceptions that the essence of or effect of the Public Officers Protection Act is to extinguish the cause of action if it is commenced after the stipulated period, which is three months, subject to the exception provided for in Section 2 (a) of the Act. That where there has been a continuance of injury or damage, a fresh cause of action arises from time to time as often as the damage or injury is caused.”
17. Now, from the above what the Court has to do here is first determine whether its jurisdiction is ousted by the provisions of Order 18 Rule 6 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, the upshot of which is to answer the question formulated for determination by the objectors whether or not the Court has jurisdiction to hear this matter which the Objectors maintain is statute barred by virtue of Public Officers Protection Act.
18. From a rendering of the facts of the case by the Claimant, it is clear that the cause of action and right of action which accrued to him upon his termination by the Defendants now Objectors to his suit becomes the paramount issue for consideration.
19. Crucially, the date the cause of action accrued must be next considered from the averments in the claim. The Claimant averred that he returned to Nigeria in August, 2015 with his Doctorate degree in Physics. On returning, he reported to the Defendants who told him his appointment has been terminated, he wrote two letters of complaint dated 4th August, 2019 and 19th November, 2015, both letters were responded to and his pleas refused, this from paragraph 22 of his amended statement of claim.
20. Now, the Objectors contended on the point of the date the cause of action arose/accrued was on 25th September, 2015 when the Claimant while he was still outside the country which the Claimant contends he was not aware until August, 2015 when he returned to Nigeria. And at this point it is worthy of note to bear in mind that it is an established fact from the averments of both parties that the Claimant travelled out of Nigeria without the Defendants’ approval. It is also an established fact that this action was filed on the 24th of November, 2016 as shown on the writ of summons. The Public Officers Protection Act prescribes a 3 month period for commencement of action for the Court to be clothed with jurisdiction to hear the suit. In this case as mentioned earlier, the Defendants last letter to the Claimant was 22nd February, 2016 a period of more than 7 months after which the action was commenced. In the face of this I find and do hold the action to be statute barred and the Court’s jurisdiction ousted.
21. In the case of FORSTRY RESEARCH INSTITUTE OF NIGERIA V. GOLD (2007) 11 NWLR (PART 1044) the Supreme Court held that Public Officers Protection Act applies to contracts of employment as in the present case before this Court. I hold that nothing has changed in the law on this.
By this Ruling, any other pending application is hereby struck out, the main suit upon which it rest having hereby been dismissed for being statute barred.
Ruling is entered accordingly.
HON. JUSTICE E. D. E. ISELE