Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: SEPTEMBER 22, 2015 SUIT NO: NICN/LA/246/2014 BETWEEN ASC Isaac Okiki - Claimant AND Nigerian Customs Service Board - Defendant REPRESENTATION J.A. Asemota for the Claimant. Amaobi I.C. for the Defendant. RULING On the 4th of June 2014, the Claimant approached this Court via a General Form of Complaint and sought the following reliefs - 1. A declaration that the arbitrary removal of the Claimant’s name from salary, allowances, posting and appointment without due process is wrongful, illegal, null and void. 2. A declaration that the failure of the defendant to comply with the report reference NSC/INV/98.98/ABJ/HQ dated 16th December, 1998 which exonerated the claimant and recommended that he should return to his duties is unjust, tyrannical and a clear abuse of process. 3. A declaration that the claimant is a bona-fide officer of the defendant and was properly recruited, trained and deployed. 4. An order of the court reinstating the claimant to the employment of the defendant. 5. An order of the court directing the defendant to compute and pay the claimant all accrued salaries, allowances and other entitlements commensurate to the claimant’s rank and status from October 1998 up to and including the date of judgment and thereafter, as he may be entitled to monthly until lawfully retired. 6. Interest on the computed amount at the rate of 30% from the date of judgment until judgment sum is liquidated. 7. The sum of N50,000,000.00 (Fifty Million Naira Only) as general damages. 8. The sum of N500,000.00 (Five Hundred Thousand Naira Only) as cost of this action. The Complaint was accompanied by all requisite processes as directed by the Rules of this Court. The Defendant entered an appearance on 4/12/14, filed its defence processes and also filed a Notice of Preliminary Objection challenging the jurisdiction of this Court to hear and determine this matter. The notice of preliminary objection was brought pursuant to Section 2(a), Public Officers Protection Act, Cap. P41, Laws of the Federation of Nigeria, 2004. The ground of the objection is that the Claimant/Respondent's action against the Defendant/Applicant is statute barred by virtue of the provisions of section 2(a) of the Public Officers Protection Act. On 19/5/15 when argument was taken on the preliminary objection, learned Counsel to the Defendant/Applicant adopted the already filed written address as her submission. In the said written address learned Counsel set down a lone issue for determination as follows - Whether the action of the plaintiff against the defendant is statute barred by virtue of the provisions of section 2(a) of the Public Officers Protection Act Cap. P41, Laws of the Federation of Nigeria, 2004. Arguing this issue, learned Counsel submitted that the present suit is statute barred quoting section 2(a) of Cap. P41, Laws of the Federation of Nigeria, 2004. Referring to Ibrahim v. JSC (1998)14 NWLR (Pt. 584) 1 Counsel submitted that section 2(a) Public Officers Protection Act gives full protection to or covers all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public duty and that the definition of any person in the statute includes both natural persons or human beings as well as artificial persons such as a corporation or unincorporated bodies. According to learned Counsel, where an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation laid down by judicial process instituting such an action has elapsed and that legal proceedings cannot be properly or validly instituted after the expiration of prescribed period, citing NPA v. Lotus Plastic Limited & 10 Ors. (2006)All FWLR (Pt. 297) 1023 at 1045. According to learned Counsel, the cause of action in this case occurred in October 1998 while the suit was filed on 4/4/14 sixteen years after the alleged act was committed and that the Claimant commenced this action outside the three months allowed by the Public Officers Protection Act. Counsel urged the Court to hold that the present suit is incompetent having been filed outside 3 months allowed by the statute and to dismiss same. In opposition, learned Counsel to the Claimant filed a 9-page written submission on 23/2/15. In it Counsel set down two issues for determination as follows - 1. Whether this action of the Claimant/Respondent is statute barred by virtue of the provision of section 2(a) of the Public Officers Protection Act, 2004; and 2. Whether this preliminary objection is not abuse of Court process and whether the Defendant/Applicant is not estopped from re-introducing same in this suit. Learned Counsel to the Claimant submitted that the present suit is not statute barred; that the provision of the Public Officers Protection Act is very clear that where there is continuance of damage, the provision will not apply until after three months of cessation of the damage, citing A.G. Rivers State v. A. G. Bayelsa State (2013)3 NWLR (Pt. 136) 123 at 133. Citing Adekoya v. FHA (2008)6 MJSC 66 at 68 as authority, Counsel further submitted that a plea by a defendant in any given case that the action is statute barred is a plea which raises the issue of jurisdiction and which determinant is the writ of summons and the statement of claim. Learned Counsel referred the Court particularly to paragraphs 30-36 of the statement of facts and pointed out the fact that the claimant was never queried in writing for any wrong doing; that he has not been informed either verbally or in writing that he has been dismissed, retired, terminated or suspended; that he has not received any letter from the defendant/applicant that he has lost right to his salary for whatever reasons and that no disciplinary action has been taken against him in accordance with the regulation/procedure embodied in the Customs & Excise Management Act, 1990 or under any rule or law. Counsel further referred to paragraphs 31 and 32 of the statement of facts pointing out the fact that the Claimant's records in the Defendant's Headquarters are still intact; that there is nothing to suggest that his salary has been stopped or that he is no more in service and that he is alleged to be serving in Area 'A' Headquarters. Counsel submitted that the employment of the Claimant is one with statutory flavour; that the Defendant is part of the public service of the Federation with rules and regulation governing the employment and determination of same and that refusing to pay the monthly salary and allowances of a senior officer who has not been retired, dismissed, suspended or terminated, or informed in writing that his salary has been stopped is certainly an action in bad faith and without a semblance of legal justification. Counsel quoted CBN v. Amao & Ors (2010)5-7 (Pt.111)MJSC 1 at 5-6, where Onnoghen, JSC said as follows referring to Public Officers Protection Act - ''The provision is very clear and unambiguous. It provides simply that an action against a public officer in respect of any Act done in pursuance or execution of any Act or law of public duty or default complained of except in a case of continuance of damage or injury in which the person aggrieved must institute the action within three months next after the cessation of the damage or injury complained of. It follows therefore that each month that the respondents are paid pensions less than the harmonized pensions, a cause of action arises in respect of the balance or sum outstanding. I therefore agree with the lower Court that the Public Officers Protection Act does not apply to the facts of this case''. Counsel further cited NBC Plc v. Ayankoya Edward & 3 Ors (2015)2 NWLR (Pt. 1443) 201 and urged the Court to resolve issue 1 in favour of the Claimant/Respondent. On issue 2, Counsel submitted that this preliminary objection is an abuse of Court process. Counsel referred to Suit No: NICN/LA/83/2013 in which the Defendant/Applicant took part; that part of the Ruling in that case was against the Defendant/Applicant and that Defendant/Applicant neither appealed against the Ruling nor applied to set it aside. According to learned Counsel, the Ruling/Judgment of a competent Court is binding on parties until it is set aside, citing Akibu v. Oduntan (1992)2 LRCN 508 at 512 and that parties and their privies are estopped from re-introducing an issue already decided between them, relying on Ijayi v. Eyigebe (1987)3 NWLR (Pt. 61) 532 at 534 & Oyerogba v. Olaopa (1998)64 LRCN 5291 at 5295. According to Counsel, even if the Defendant claims not to be a party to that suit, the proper step which the defendant ought to take was to seek leave of Court to appeal against the Ruling, citing Bello v. INEC (2010)3 (Pt. 11) MJSC 1 at 6. Counsel submitted that the re-introduction of this preliminary objection which the Court had ruled on in the earlier case amounts to abuse of Court process as explained by the Court in Dinyagi v. INEC (2010)6-7 MJSC 1 at 16. Learned Counsel thus urged the Court to dismiss this application and hear this suit on its merit. The reply on points of law dated and filed on 20/3/15 by the defendant/applicant did not contain anything new argument useful to this case. Hence, I resolve not to include anything in it within this Ruling. I read with understanding all the processes filed by the learned Counsel on either side of this case. I also listened and understood the oral argument as put forward by Counsel in support of their different positions. Having done so, a sole issue is critical for the determination of this case. That lone issue is - Whether the action of the Claimant/Respondent is barred by the Public Officers Protection Act, Cap. P41, Laws of the Federation of Nigeria, 2004. A submission by a defendant to a suit that the suit is caught or barred by a statute is a challenge of the jurisdiction of the Court to hear and determine the matter. Such a challenge must therefore be resolved before any further progress is made. The reason being that a challenge of jurisdiction goes to the very root and foundation of the case before the Court and where jurisdiction is absent every effort dissipated in hearing a case amounts to efforts in futility. This is irrespective of the genuine intention, diligence and erudition of the trial Judge. A case is said to be barred by the statute if it is not brought and instituted within the time limit statutorily allowed to institute such an action. In a scenario as this, though the right of a party suing is there, it can however not be enforced through the judicial process. To determine whether or not a case is or is not barred by a statute, two critical points must be established. Firstly, the provision of the statute must be established as to the class of suits and the duration or time limit permitted; and secondly, the time when the suit concerned is instituted must be established so as to determine whether or not it comes outside the time limit. Now section 2(a) of the Public Officers Protection Act, Cap. P 41, Laws of the Federation of Nigeria, 2004 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 of any public duty or authority, or 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 of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof'. The purport of the above provision is that all actions against public officers must be instituted within three months failure to do which the right to ventilate same through the judicial process is extinguished, see Christiana Yare v. National Salaries, Wages and Income Commission (2013) LPELR 20520 (SC). However by paragraph (a) quoted above exception to the provision exists where there is continuance of damage or injury. Now, when did the cause of action in this case arise? In order to determine the date of accrual of cause of action, I perused the statement of facts of the Claimant dated and filed 4/6/14. From the pleadings filed, it is apparent that the Claimant is a staff of the Defendant; that by virtue of that fact he is entitled to salary and allowances on a monthly basis; that he was not suspended, his employment not terminated, not declared redundant, not dismissed or in any way interdicted, that he has been denied his monthly salary and allowances from October 1998 without any reason given and that his name is still on the payroll of the Defendant and alleged to be serving at the Defendant's Area 'A' Headquarters. It is thus safe to state that his cause of action first accrued in October 1998. Claim (e) of the Claimant's claims is for - 'An order of court directing the Defendant to compute and pay the Claimant all accrued salaries, allowances and other entitlements commensurate to the Claimant's rank and status from October 1998 up to and including the date of judgment and thereafter, as he may be entitled until lawfully retired'. But that certainly is not all. I found the following paragraphs of the pleadings of critical importance - ''30. Claimant says that throughout his service from 1981 to the removal of his name from salary, promotions and appointments by the defendant, he was never queried, either in writing or verbally for any wrong doing. He was never informed till date that he had been suspended, terminated, interdicted or dismissed. He was never tried and punished in accordance with the Customs & Excise Management Act, LFN 1990 or under any rule of law or regulation. His salary was simply stopped and his name removed from all duties, posting and appointments. Claimant pleads and shall rely on the Customs & Excise Management Act at this trial''. ''31. Claimant avers he got the November, 2010 computer printout through sympathizers from Customs Headquarters and was shocked to discover that his name and record was intact in the system of Nigeria Customs Service and he was designated as serving in Zone 'A' HQ. Claimant pleads and shall rely on Nigerian Customs Service computer printout for 1st, 22nd and 28th November, 2010. Defendant is hereby given notice to produce the original in court''. ''32. Claimant avers that from the documents referred to in paragraph 31 above, there is no indication that his salary, posting and appointment has stopped. Yet the defendant allowed him and his family to suffer grave injustice, pain and sorrow''. The averments in the above paragraphs are sufficiently indicative of the plight of a staff who is entitled to be paid a month salary and allowances. It is immaterial for how long he was denied his salary and allowances. The fundamental point to note is that his cause of action or right to sue accrues for every month for which he was not paid his entitlements by the Defendant/Applicant. To hold otherwise will not be in the interest of justice and neither will it be the true reflection of the state of the law on the subject in this country as at today. I am constrained to repeat what I said in Suit No: NICN/LA/83/2013 ASC Isaac Okiki v. Nigerian Customs Service where the defendant, in a similar application as the one brought by the Defendant/Applicant in this case. In that case I had stated as follows - ''The fact remains that situations and circumstances leading to this claim are not just a one stop. A worker is entitled to his salary, all things being equal, at the end of every month. Therefore for every month in which the requisite salary and allowances are not paid to a worker, a cause of action arises for which he could seek judicial intervention. It means therefore that it does not matter that such a worker is owed outstanding salaries for upward of ten or even twenty years, for each month of those years, a new cause of action arises. This scenario is envisaged by second half of the provision. In A.G Rivers State v. A. G. Bayelsa (2012) LPELR-9336 (SC), the Supreme Court stated, while construing the same section of the statute, that in cases of continuance of damage or injury, the Act permits actions to be brought on the cessation thereof after three months. Thus where an employee on a monthly salary is not paid his salary and allowances as at when due, his cause of action against his employer arises at the end of every month for which he is not paid and continues until the employer does the needful which is the payment of the outstanding salaries and allowances. This is because the injury to the employee (which is non-payment of his salary and allowances) remains a continuing one. I thus find and hold that this suit falls within the exception as allowed within section 2(a) of the Public Officers Protection Act within the meaning of the Judgment of His Lordship Onnoghen, JSC in CBN v. Amao & Ors (2010)5-7 (Pt.111)MJSC 1 at 5-6 and is therefore not adversely affected by that statute. I therefore resolve this issue in favour of the Claimant/Respondent Before I draw a curtain on this Ruling, I deem it imperative to comment on the conduct of learned Counsel for the Defendant/Applicant. Learned Counsel for the Defendant/Applicant was the same Counsel in Suit No: NICN/LA/83/2013 ASC Isaac Okiki v. Nigerian Customs Service. The same Counsel brought a preliminary objection on two main fronts one of which is on statute of limitation, challenging the jurisdiction of the Court to hear and determine that case. In a considered Ruling this Court ruled that the statute of limitation and in particular Public Officers Protection Act Cap. P41 Laws of the Federation of Nigeria, 2004 did not bar the case. That case was however struck out on a different ground entirely. In this case I. C. Amaobi of Counsel still raised a preliminary objection on the ground that the present case which has the same parties and Counsel as the one in Suit No: NICN/LA/83/2013 is barred by Public Officers Protection Act. There was no application by Counsel for this Court to set aside that Ruling. There was also no appeal against the Ruling by the learned Counsel to the Defendant/Applicant. If this attitude of Counsel by this present application does not amount to abuse of the process of Court, I know of no other act or conduct that will so amount. I however elect to say no more on this issue. Finally, the preliminary objection brought by the Defendant/Applicant is dismissed. I hold that the Claimant is entitled to cost of Twenty Thousand Naira only personally payable by the learned Counsel to the Defendant/Applicant I. C. Amaobi. This case shall therefore proceed to trial. Ruling is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge