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RULING/JUDMENT. Upon being served with the originating processes commencing this suit, the Defendant after filing a conditional appearance, vide notice of preliminary objection dated 21/12/17 and filed on 8/1/18, praying for: 1. An order declaring that this Court has no jurisdiction and/or should not exercise jurisdiction to entertain this suit. 2. An order striking out and/or dismissing this suit, 3. And for such further or orders as this Honourable Court may deem fit to make in the circumstance. The grounds of the objection are: I. This suit is statute barred and the court has no jurisdiction to entertain it or make the order. II. The condition precedent to the jurisdiction of the Court to entertain the suit was not fulfilled and/or the suit was not properly commenced. III. Having regards to the true and proper meaning and intendment of section 12(1) and (2) of the Nigerian National Petroleum Corporation Act cap N123 Laws of the Federation of Nigeria 2004, and section 2(a) of the Public Officers (protection) Act Cap P41Laws of the Federation of Nigeria 2004, the Court has no jurisdiction to entertain the suit as constituted against the Defendant. IV. This suit amounts to gross abuse of Court process V. The suit is other wholly incompetent. The preliminary objection was supported by 10 paragraphs affidavit, sworn to by one Uche George Chinaka, a Counsel in the Law Firm of Clement Chinaka & Co. Solicitors to the Defendant/Applicant. There is also a written address filed along with the notice of preliminary objection in compliance with the Rules of this Court. Clement Chinaka, Esq; Counsel for the Defendant/Applicant while making oral submissions informed the Court that he is relying on all the paragraphs of the affidavit and adopted the written address as his argument. In the written address Counsel formulated two issues for determination, to wit: 1. Whether the Complaint is in compliance with Section 12(2) of the Nigerian National Petroleum Corporation Act, Cap N123, Laws of the Federation of Nigeria 2004, as the Claimant failed to give the Defendant the necessary Pre-Action Notice as required by the Act establishing the Corporation. 2. Whether or not this action is statute barred and in consequence whether or not this Court has jurisdiction to entertain the action. ARGUMENTS ISSUE ONE: Whether the Complaint is in compliance with Section 12(2) of the Nigerian National Petroleum Corporation Act Cap N 123 Laws of the Federation of Nigeria 2004 as the Claimant failed to give the Defendant the necessary Pre-Action Notice as required by the Act establishing the Corporation. In arguing issue one, before the Court Counsel submitted that having regard to the provision of Section 12(2) of the Nigerian National Petroleum Corporation, this Suit as constituted against the Defendant must fail. Section 12(2) of the Nigerian National Petroleum Corporation Act provides for giving of pre-action notice to the Defendant before any action is commenced against it in any Court of law. Counsel submitted that it is trite law that necessary Pre-Action Notice must be served on the Defendant before any action could be maintained against it. Counsel further submitted that it is not in doubt that the Claimant was under the employment of the Nigerian National Petroleum Corporation as contained in paragraphs 2, 3,6,13 of the affidavit in support of this Suit. It is the contention of Counsel that service of Pre-Action Notice on Nigerian National Petroleum Corporation being the employer of the Claimant is a condition precedent to the jurisdiction of court to entertain this Suit against the Defendant. Counsel contended that a closer look at all the averments in the Complaint and the Affidavit in Support will reveal that this statutory requirement was not complied with by the Claimant before bringing this Suit. Counsel submitted that the provisions of section12(2) of the Nigeria National Petroleum Corporation Act 2004, was interpreted by the Court of Appeal in case of P.P.M.C Ltd V Al-Musmoon Sec. Ltd (2016) 13 NWLR (1528) P. 69 at 78 paras A-C as follows: wherein the Court held that; "By virtue of section 12(2) of the Nigeria National Petroleum Corporation Act 2004, no suit shall be commenced against the Corporation before the expiration of a period of one month after written notice of intention to commence the suit shall have been served upon the Corporation by the intending plaintiff or his agent; and the notice shall clearly and explicitly state the cause of action, the particulars of the claim, the name and place of abode of the intending plaintiff and the relief which he claims" Counsel submitted that in the circumstance, the Claimant having not complied with the condition precedent as required by law, this Court lacks jurisdiction to entertain this suit as the condition precedent has not been met. In concluding his submission Counsel urged the Court to hold that this Honourable Court has no jurisdiction in the circumstance to entertain this suit as constituted against the Defendant and the claim must be struck out. ISSUE TWO ‘‘Whether or not this action is statute barred and in consequence whether or not this court has jurisdiction to entertain the action’’. In arguing this issue, Counsel submitted that this suit is statute barred and in consequence the Court lacks jurisdiction to entertain the suit. Counsel submitted that this suit was instituted by the Claimant to challenge his dismissal from service vide letter of 29th May 1999; following the Claimant's involvement in the case of impersonation, dishonesty, and fraud. Counsel referred to Section 2(a) of the Public Officers Protection Act, and section 12(1) of the Nigerian National Petroleum Corporation Act, and submitted that by the community reading of Sections 12(1) of the Nigerian National Petroleum Corporation Act and Section 2(a) of the Public Officers Protection Act, the Claimant's Suit is caught with the limitation of Action prescribed under the Acts and therefore the Claimant has no right of action against the Defendant. It is the contention of the Defendant/applicant that the term "Public Officers" under the Act also includes Public Offices and Authorities like the Defendant. It is also the contention of Counsel that the issue of limitation of action is an issue which goes to the jurisdiction of the court. In concluding his submission Counsel urged the Court to determine this issue in favour of the Defendant and dismiss this Suit in its entirety. CLAIMANT’S RESPONSE TO THE PRELIMINARY OBJECTION OF THE DEFENDANT. In reaction to notice of preliminary objection, the Claimant filed a 7 paragraphs counter affidavit and a written address. Usman Oluwakere, Esq; Counsel for the Claimant in his oral submission before the Court place reliance on all the paragraphs of the counter-affidavit and adopted the written address as his argument. In the written address Counsel adopted the two (2) issues as formulated by the Defendant. ARGUMENT ISSUE ONE In arguing issue one, Counsel submitted that the claimant had complied with section 12(2) of the Nigerian National Petroleum (NNPC) Act by given the necessary pre-action notice dated 3rd July, 2017. See Exhibit 'C' attached to the counter affidavit. It is the contention of Counsel that since the condition precedent to the institution of the suit had been fulfilled, this Honorable Court has the jurisdiction to entertain this suit. Counsel therefore urged this Honourable Court to discountenance the case of P.P.M.C Ltd Vs AL MUSMOON SEC LTD (2016) 13 NWLR (pt.1528) 69 cited by the Defendant in support of its preliminary objection as it is not relevant to this application and dismiss same in this leg. ISSUE TWO On issue two, Counsel referred to Section 2(a) of the Public Officers Protection Act, and submitted that what existed between the claimant and the Defendant is a contract of employment as per his letter of employment. Exhibit ‘A’, the letter of employment dated 1st July, 1983. It is contended by Counsel that Exhibit A attached to the Counter Affidavit is to show that the intendment of the parties bothered on contract of service. To support his contention Counsel cited the cases of NPA vs CONSTRUZIONI GENERALI (1974) 11 - 12 SC 69, C.B.N vs ADEDEJI (2005) ALL FWLR (pt.244) 912, FGN V ZEBRA ENERGY LTD (2002) FWLR (Pt. 1749) 1772, W. S & F PLC VS N.A.I.C (2015) ALL FWLR (Pt. 807) 410 at 457. In concluding his submission Counsel submitted that since the Claimant had issued Exhibit C, Section 12(2) of the NNPC Act, the condition precedent to the institution of this suit has been complied with. In the same vein, since the contract between the Claimant and NNPC bothered on contract of service as indicated in exhibit A attached to the counter-affidavit, the suit of the Claimant did not come under section 2(a) of the Public Officers Act. Counsel urged the Court to dismiss the objection with substantial cost. REPLY ON POINTS OF LAW The Defendant filed reply on point of law on 16/2/18. In the reply on points of law Counsel submitted three issues for determination, to wit: 1. ‘‘Whether the Claimant has disclosed any cause of action thereby vesting jurisdiction to this court in the face of an incompetent action as presently constituted, filed by the Claimant’’. 2. Whether the Defendant is a public officer as provided under the Public Officer’s Protection Act’’. 3. ‘‘Whether the Claimant's suit is not caught up by the provisions of Sections 2(1) of the Public Officers' Protection Act and 12 of the Nigerian National Petroleum Act respectively, thereby making this suit incompetent’’. ARGUMENT ISSUE ONE ‘‘Whether the Claimant has disclosed any cause of action thereby vesting jurisdiction to this Honourable Court in the face of an incompetent action as presently constituted filed by the Claimant’’. It is submitted that 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 favourable judgment. It is the factual situation stated by the Plaintiff which if substantiated entitles him to a remedy against the Defendant. It is the entire set of facts or circumstance giving rise to an enforceable claim. It includes all those facts necessary to give right of action and every fact which is material to be proved to entitle the plaintiff to succeed. CRU TECH V OBETEN (2011) 15 NWLR (PT 1271) 588 at 607. Counsel submitted that it has been held that, in determining whether there is a reasonable cause of action, the Court is guided and directed to restrict itself to the Statement of Claim of the Plaintiff and nothing else. And in doing this, the Court is not obliged to consider seriatim all the averments in the Statement of Claim as a whole, it is sufficient to look into those averments that form the gravamen of the claim. YARE V N.S.W & I.e. (2016) 3 NWLR (PT 1329) 309 SC. Having regard to the circumstances of this case, it is correct in law to say that the Claimant after realizing that his action is bereaved of any merit as same was not brought in satisfaction of the requirements of the Rules of this Court came through the back door in order to steal a match against the Defendant by purportedly filing some documents in his Counter Affidavit after the Defendant has filed a Preliminary Objection challenging the jurisdiction of this Court on the ground of non-compliance with the condition precedent. It is argued that this Court lacks and should decline jurisdiction in hearing this suit as same is incompetent and should be struck out. It is further argued that Rules of Court are meant to be obeyed and non-compliance with the Rules will be prejudiced to the case of the party in default. This state of the law remains valid as long as the non-compliance affects the jurisdiction and competence of the adjudicatory powers of the Court, especially where the non-compliance goes to the root of the case and affects the foundation and fundamentals of the case. Counsel referred the Court to the case of OVEBADE V AJAVI (1993) 1 NWLR (PT. 269) 313 AT 331-332. It is submitted that the Courts have consistently held that the validity of any Originating Process in a proceeding before a Court is a fundamental and necessary requirement for the competence of a Suit, the proceedings and process set out to commence. Failure to commence a suit with a valid writ and / or Complaint, as is the case in the instant Suit goes to the root of the action since the condition precedent to the exercise of the Court's jurisdiction would not have been met to duly and properly place the Suit before the Court. Counsel invited the Court to the cases of MADUKOlUM V NKEMDllIM (1962) 2 SCNlR 341 at 348 paras E_G and BRAITHWAITE V SKYE BANK PlC (2013) 5 NWlR (PT.1346) 1 at 15 Paras C-E In view of the above, it is submitted that this Suit being not instituted by the due process of the law is incompetent and ought to be struck by this Honourable Court. ISSUE TWO Whether the Defendant is a Public Officer as provided under the Public Officers' Protection Act. Counsel submitted by virtue of Section 4(1) of the Public Officers (Special Provisions) Act Cap 381 Laws of the Federation of Nigeria 1990, a Public Officer is any person who holds or has held any office on or after 31st December, 1983 in (a) -------------------------------------------------------------------00--------------- (b) The service of a body whether corporate or unincorporated established under a Federal or State Law. (c) A company in which any of the Government in the Federation has a controlling interest. It is an obvious fact My Lord that the Defendant is a company created by Law and the argument of Counsel to the Claimant to the effect that the Defendant is not protected under the Public Officers Protection Act is misconceived and need to be jettisoned as it is an argument not founded both in law and fact ISSUE THREE Whether the Claimant's Suit is not caught up by the provisions of Sections 2(1) of the Public Officers' Protection Act and 12(1) of the Nigerian National Petroleum Act respectively, thereby making this Suit incompetent It is contended by Counsel that the Law provides that where a Statute provides for the institution of action within a prescribed period, proceeding shall not be brought after the time prescribed by such Statute. The effect of limitation in law is that any action that is statute barred removes the right of action, the right of enforcement and the right of judicial relief. And the reason for the enactment of the limitation Acts is to ginger aggrieved persons to be vigilant and not to sleep on their perceived infracted rights. Counsel submitted that it is an obvious fact on record vide exhibited letter of termination served on the Claimant that the act being complained about by the Claimant took place in 1999. Following from the above, it is submitted that where a limitation of time is imposed in Statute, Decree or Edict, unless the said Statute, Decree or Edit make provision for extension of time, the Court cannot enlarge the time. In view of this Counsel submitted that an action filed outside the period provided by the law will lapse due to effluxion of time. It is also the contention of Counsel that from the community reading of Sections 2(1) of the Public Officers' Protection Act and 12(1) of the Nigerian National Petroleum Act respectively, the action of the Claimant is Statute barred and cannot be legally resuscitated. COURT’S DECISION I have carefully and painstakingly perused the originating process and its accompanying documents. I have equally thoroughly examined the contents of the notice of preliminary objection, the affidavit in support, counter-affidavit as well as the written addresses filed by the Counsel for both parties. Considering the prayers contained in the notice of preliminary objection, I shall also adopt the two issues distilled by the Defendant Counsel in his written address of 8/1/18. However, before, proceeding to deal with the two issues for determination, it is incumbent upon me to dispel certain preliminary issues arising from the written addresses of Counsel. I shall start with the defendant’s reply on points of law, the purported reply on points of law turn out to be repetition of the earlier submission of Counsel already canvassed in the final written address. It also raised new issues that were not canvassed by Counsel in the main written addresses. A reply on points of law is meant to be just what it says, a reply on points of law. It is not meant for the party replying on points of law to reargue its case or bring in points it forgot to advance when it filed its final written address. In the words of Justice B. B. Kanyip, in the unreported case SUIT NO. NICN/LA/262/2013, Dorothy Adaeze Awogu Vs TFG Real Estate Limited, which judgment was delivered on JUNE 4, 2018, he says: ‘‘A reply on points of law is thus not meant to improve on the quality of a written address; it is not a repair kit to correct or put right an error or lacuna in the initial brief of argument. See Dr Augustine N. Mozie & ors v. Chike Mbamalu [2006] 12 SCM (Pt. I) 306; [2006] 27 NSCQR 425, Basinco Motors Limited v. Woermann Line & anor [2009] 13 NWLR (Pt. 1157) 149; [2009] 8 SCM 103, Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors [2016] LPELR-40220(CA), UBA Plc v. Ubokolo [2009] LPELR-8923(CA) and Musaconi Ltd v. Aspinall [2013] LPELR-20745(SC)’’. It must be understood that a reply on point of law is not an opportunity to be seized by a party to embellish his earlier written address. It is meant to deals with new issues raised in the written address in reaction to the main address. It is not a forum for Counsel to set up a new case different from what he has earlier presented before the Court. Counsel must therefore adhere strictly to the prayers contained in his notice of objection. In view of the foregoing and the fact that the reply on point of law is not in actual sense a reply on points of law I shall discountenance the defendant’s reply on points of law to the extent of its repeated submissions or arguing of new prayers not contained in the main notice of objection. Another issue is non-compliance with rules of Court, the Defendant has in his reply on points of law, submitted that this suit was not commenced in line with rules of this Court. According to Counsel the non-compliance goes to the root of the action. It is trite law that objection to originating process on ground of non-compliance with rules of Court has to be raised timeously without any delay. The Defendant raised this objection on 16/2/18 in his reply on points of law. The originating process commencing this suit was served on the Defendant on 21/11/17. This shows that it took the Claimant three Months to raise the objection on 16/2/18. The period of three Month is in excess of the time the Rules of this Court allowed for raising such an objection. See Order 3 Rule 21(2) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. The objection of the Defendant regarding non-compliance is hereby rejected and discountenance for being based on misconception of law. I shall now focus on the two issues for determination. ISSUE ONE The Defendant while relying heavily on the case of P. P. M. C. LTD V AL-MUSMOON SEC. LTD (2016) 13 NWLR, has submitted that this Court lacks jurisdiction to entertain this suit as it is presently constituted due to non-service of pre-action notice as required by section 12(2) of the NNP Act. The Claimant on his part has submitted that vide exhibit C attached to his counter-affidavit filed in opposition to this notice of preliminary objection, he has fulfilled all the conditions precedent to approaching this Court for redress. I have had a hard look at exhibit ‘C’ which is in paragraph 4(1v) of the counter-affidavit of the Claimant, it is clear that the said exhibit was addressed to the Group Managing Director of Nigeria National Petroleum Corporation, NNPC Towers, Abuja, titled pre-action notice. I am satisfied that exhibit C has satisfied the provision of section 12(2) of the NNPC Act. In the circumstances, it is my humble view that pre-action notice has been duly issued and served as required by law. Therefore the Defendant’s objection on this ground has no merit. The issue is resolved against the Defendant. ISSUE TWO It is the contention of Counsel for the Defendant that the combine or community reading of section 2(a) of the Public Officers Act and section 12(1) of the NNPC Act, the Claimants action is statute barred as it is caught by the statutes of limitation of action. The Claimant in response submitted that section 2(a) of the Public Officers Act and section 12(1) of the NNPC Act are not applicable to this suit due to the fact that the main complaint is on contract of employment and section 2(a) of public Officers Act does not apply to contract of employment. The submission of Counsel for the Claimant that the Public Officers Protection Act does not apply to contract of employment is not sustainable in law. The reason being that the Apex Court of the Land has consistently in its decision been applying the provisions of section 2(a) of the Public Officers Protection Act to mention few I will refer to IBRAHIM V JUDICIAL SERVICE COMMITTEE OF KADUNA STATE (1998) 14 NWLR (PT.548) 1; the supreme Court in FORESTRY RESEARCH INSTITUTE OF NIGERIA V GOLD (2007) 11 NWLR (Pt.1044); held that Public Officers (Protection) Act applies to contract of employment. Also in NBC V BANKOLE (1972) NSCC 220, the plaintiff instituted an action for unlawful termination outside 12 Months, and the Court held that the Defendants enjoyed statutory privileged position by section 83(1) of the Railway Act and section 61 of Broadcasting Corporation Act, Pubic Officers (Protection) Act. In the light of these decisions of the Apex Court any decision that goes contrary to the dictate of the decisions of the Supreme Court will have to be treated as made per incuriam’. Therefore, the submission to the effect that the section 2(a) of the Public Officers (Protection) Act, does not apply to contract of employment is misconceived. It is to be noted that before the provisions of section 2(a) applies it must be shown that the party seeking to benefit from the protection is a public officer. The question now to ask is can the Defendant who is seeking to benefit a public officer. The Defendant in this suit is from tits name a limited liability company this can be deduced from the word ‘limited’ at the end of the name, see exhibit B the letter of dismissal of the Claimant the name of Defendant has in it the word ‘limited’ which indicate that it is a limited liability company incorporated under the Companies and Allied Matters Act (CAMA). In paragraph 2 of the statement of facts filed along with the Claimant’s complaint it was averred that the Defendant is a limited liability Company. It has been held that a limited liability company is not a public officer. See FEDERAL BOARD OF INLAND REVENUE, (supra) it cannot therefore enjoy protection accorded public officers under section 2(a) of the Public Officers Protection Act. The definition of public officer under section 2(a) of the public Officers Protection Act does not cover limited liability Company such as the Defendant in this case. In view of this this action is not statue barred as per section 2(a) of the Public Officers (Protection) Act. On applicability of limitation law under section 12(1) of the NNPC Act, it is clear from the wording of the section that it is meant to apply to NNPC and not to limited liability companies either wholly or partly owned by NNPC. It is settled law that there is a world of difference in the status of a corporation and its subsidiaries. In FEDRAL BOARD OF INTERNAL REVENUE V INTEGRATED DATA SERVICES LIMITED (2009) 8 NWLR (Pt.1144) 615; 2009) LPELR-8191(CA). The Court of Appeal per Ogumuwiju, has this to say : ‘‘it has been settled that there is a difference in the legal status of a public corporation and its subsidiaries. While a public corporation can claim to be a public officer, its subsidiaries especially limited liability companies cannot claim to be public officers. The legal status of a public corporation and those of a limited liability company registered under CAMA makes them distinct legal entities. See OKOMO OIL PALM CO LTD V ISERHIENRHIEN (supra); ASO MOOTEL KADFUNA LTD V DEYEMO (2006) 7 NWLR (Pt.978) 87’’. It is clear from the dicta above that since the Defendant is distinct entity it cannot enjoy the benefit of limitation law under section 12(1) of the NNPC Act. However, since the claim is based on simple contract the general law of limitation of actions that provides all claims based on contracts must be made within six years of accrual of cause of action, applies to this suit. In the case at hand the dismissal of the Claimant was on 29th May 1999 and this action was instituted on 21/11/17. This means that this suit was commenced 18 years after the accrual of the cause of action. In my view it caught by the limitation law on contracts. In view of the above finding this suit is statute barred for having been instituted eighteen years after the accrual of the cause of action and over and above the six years period allowed by law. Therefore, the Claimant has over slept over his right of action and would have himself to blame for the lateness and failure to act within the time permitted by law. In the circumstance the Claimant’s action is beyond redemption. Accordingly, it is hereby dismissed for being statute barred. Sanusi Kado, Judge