Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE CALABAR JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: September 29, 2015 SUIT NO. NICN/CA/53/2013 BETWEEN 1. MRS. JENNY EDEM 2. AKPOKE ASIKONG AKPOKE 3. EJA ASIKONG AKPOKE CLAIMANTS 4. EKEBI A. AKPOKE 5. EBEI ASIKONG AKPOKE AND 1. THE NIGERIAN POLICE FORCE 2. INSPECTOR GENERAL OF POLICE 3. DIRECTOR, POLICE PENSION OFFICE DEFENDANTS 4. FEDERAL MINISTRY OF POLICE AFFAIRS 5. COMMISSIONER OF POLICE(CROSS RIVER STATE) REPRESENTATION Mercy Ekpuk for the Claimants Nanfort Amos for the 3rd defendant RULING The claimants filed this action against the defendants on 15th March 2013 seeking the following reliefs jointly and severally against the defendants as follows: 1. Payment of gratuity due to the deceased Emmanuel Akpoke who died while in active service. 2. Payment of pension due to the deceased Emmanuel Akpoke as his death benefit as special damages. 3. Payment of N100 Million only for the mental and psychological trauma suffered by the claimants and the bereaved family of late Emmanuel Akpoke as general damages 4. Payment of N10 Million Naira as cost of litigation. The complaint is accompanied by a statement of claim, witness statements on oath and documents to be relied upon. After the claimants had closed their case and the matter was adjourned for adoption of final address, the 3rd and 4th defendant then entered appearance and filed preliminary objections to the suit. The objection filed by the 4th defendant was struck out having failed to move it. The preliminary objection filed by the 3rd defendant is dated 18th July, 2014 and is praying for an order of this court dismissing or striking out the suit in its entirety for want of jurisdiction. The grounds upon which the objection is made are as follows: 1. The subject matter is not within the jurisdiction of this Honourable Court. 2. The claimant’s suit is statute barred. 3. The 3rd defendant is not an existing person. The objection is supported by a written address dated 18th July 2014. In reaction, the claimant filed a reply argument to the notice of preliminary objection on 26th March, 2015. Learned counsel to the 3rd defendant raised three issues for determination by the court: 1. Whether having regard to the combined provisions of section 254C of the 1999 Constitution (as amended) and Section 7 of the National Industrial Court Act this court has jurisdiction to entertain this matter. 2. Whether the claimant’s claim filed on the 15th day of March, 2013 is statute barred by virtue of the Public Officers Protection Act? 3. Whether a non-existent party is a proper party before this court / Whether an action can be maintained against a non existent party. She submitted that the subject matter of this suit does not fall within the jurisdiction of this court as envisaged by Section 254C of the 1999 Constitution and Section 7 of the National Industrial Court Act, 2006. That the jurisdiction of this court is limited to workers only and does not apply to the ‘memory’ of the late Mr. Akpoke and to the payment of death benefits. She argued that the claimants may have an actionable case but this court is not the proper forum to entertain this matter; that the proper court to handle this matter is the High Court of Calabar. Counsel submitted that the issue of jurisdiction can be brought up at any time before judgment and even for the first time on appeal. He submitted that the question of the validity of jurisdiction of the court touches on the competence of the court to hear and determine a matter before it citing Galadima v Tambai (2000) 2 NSQLR 1156, Lekwot v Judicial Tribunal (1997) 8 NWLR (Pt. 515) 22, Josiah Ayodele Adetayo & Ors v Kunle Ademola & 2 Ors (2010) 42 NSCQLR 1133, Musaconi Limited v Aspinal (2013) 54 NSCQR 363. It was her further submission that the limitation law is procedural setting out clearly time within which an action must be brought. That the cause of action arose around 1993 and the claimant commenced this action on 15th March, 2013. She submitted that the 3rd defendant is a public officer by virtue of his office and an action against him must be commenced within three months of accrual of cause of action. That the mandatory three months required by law to initiate the action against the defendants has expired referring to Section 2(a) of Public Officers Protection Act. It was her submission that the protection provided for in Section 2(a) of Public Officers Act covers “any act”, is wide enough to incorporate the alleged wrongful act complained about and does not admit of any restrictive circumscription citing Ibrahim V. Judicial Service Commission & Ors (1998) 14 NWLR (Pt. 584) 1. She argued that the claimant’s right of action was dead having failed to institute this action before the expiry of three months when the cause of action arose. It was her submission that a Statute of Limitation removes the right of action and that the claimant’s action is statute barred citing Yare v Nunku (1995) 5 NWLR (Pt.394) 129, Francis Ofili V. Civil Service Commission (2008) All FWLR (Pt. 4340) 1623, Sulgarve Holdings Inc V. F.G.N & 3 Ors (2012) 17 NWLR (Pt.1329) p. 319, William O. Olagunji & Anor V. Power Holding Co. of Nig. Plc (2011) LPELR 2556 SC and Kalogbor V. General Oil Ltd (2008) All FWLR (Pt.418) 303. She then urged the court to dismiss this claim in its entirety. She submitted that the 3rd defendant is a non-existent person and ceased to exist from August, 2013 when Pension Transition Arrangement Department was established because Section 34 of the Act provides that the Department shall take over the asset and liabilities of the Pension Board and Offices. That section 30 of the repealed Pension Reform Act 2004 established the Pension Transition Arrangement Department and is empowered under Section 32 (a) of the Act to take over the payment of pensions hitherto undertaken by these Boards and Offices under the Defined Benefit Scheme, while Section 35 empowers the Pension Transition Arrangement Department to make payments to the next of kin of beneficiaries who fall under the Defined Benefit Scheme. He submitted further that the 2014 Pension Reform Act which repealed the 2004 Pension Act has maintained the composition of the Pension Transition Arrangement Department which comprises of the Police Pension Office amongst others. She argued that the 3rd defendant is not a legal person as it has ceased to exist and urged the court to dismiss this suit. Learned counsel to the claimants did not formulate any issues but replied to the three issues formulated by the 3rd defendant. She submitted that the question that arises is which court has the jurisdiction to entertain the non payment of the death benefits of late Mr. Akpoke a Police Officer who died in service having worked for 32 ½ years. She submitted that jurisdiction is given either by the Constitution or a specific statute on the subject matter citing A.G Federation V. Guardian Newspaper Ltd (2001) FWLR (Pt.32) 93. She submitted that this matter is within the exclusive jurisdiction of this court relying on Section 254C (1) (a) (b) (d) (f) of the 1999 Constitution as amended by Third Alteration Act, 2010. She argued that the children of late Mr. Emmanuel Akpoke are suing the Nigeria Police Force as next-of-kin for their father’s gratuity and death benefits. She referred to Section 36 of the Pension Reform Act on payment to next of kin in case of death of the employee and that this court is vested with the jurisdiction to entertain the claimant’s case. Counsel submitted that Section 2 (a) of the Public Officers Protection Act Section 2(a) is not absolute as there are several exceptions to the law such as continuance of damage or injury, where the Officer relying on it acted outside the colour of his office or outside his statutory or constitutional duty, breaches of contract, claims for work and labour done, Good faith. She submitted that in cases of continuance of damage or injury, the Public Officers (Protection) Act permits actions to be brought the outside three months where the injury has not ceased citing Attorney General of Rivers State V. Attorney General of Bayelsa State & Anor (2013) 3 NWLR (Pt. 1340) 123. She argued that the defendants have continually caused damage and injury to the next of kin to late Emmanual Akpoke by refusing to pay his deceased family his gratuity and pension and so the Public Officers Protection law cannot avail them citing Aremo II v Adekanye (2004) All FWLR (Pt. 224). She submitted that the pension office was under a duty to pay the death benefits and other entitlements of late Mr. Emmanuel Akpoke from the time the notice of his death was made known to them which is a statutory duty and that their failure to do so prevents them from the protection of the law. Counsel submitted that the Public Officers Protection law does not apply in cases of breaches of contract citing FGN V. Zebra Energy Ltd (2002) 18 NWLR (Pt.798) 162 and that the entire action of the defendants before and after are all in bad faith as their action is to see to it that the deceased death benefits and gratuity are forfeited forever. She submitted that in the determination of issues of jurisdiction the applicable law is that which was in force at the time the cause of action arose and not that which was in force when the issue of jurisdiction was raised citing University of Ilorin Teaching Hospital V. Akilo (200) FWLR (Pt. 28) 2287, NEPA V. Atukpo (2000) FWLR (Pt.20) 626. That at the time this suit was commenced the Pension Transitional Arrangement Department (PTAD) was not in existence and the Police Pension Commission was responsible for the payment of pension, gratuity including death benefit of Police officers. She argued that it would have been impossible for the claimants to have sued the Pension Transitional Arrangement Department since there was no such agency in place at the time this suit was filed. She then urged the court to dismiss the 3rd defendant’s argument as being baseless. Having considered the submissions of counsel, the issues to be determined are (i) whether this action is caught by the Limitation Law; (ii) whether the third defendant is an existing person. A court can only assume jurisdiction if the subject matter is within its jurisdiction and the case has been initiated by due process of law and upon fulfilment of any condition precedent to the exercise of its jurisdiction. See Madukolu v Nkemdilim [1962] 2 SCNLR 341. In deciding whether a case is statute barred or not, the court only has to look at the writ of summons and the statement of claim alleging when the wrong was committed which gave rise to the cause of action and comparing that date with the date the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the Limitation law, the action is statute barred. See Elabanjo v Dawodu [2006] 6-7 SC 24. The 3rd defendant argues that this action is caught by the provisions of section 2(a) Of the Public Officers Protection Act. Section 2(a) of the Public Officers Protection Act is reproduced as follows: 2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance of 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 Act, Law, duty or authority, the following provisions shall have effect: (a) The action, prosecution, or proceedings 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 continuance of damage or injury, within three months next after the ceasing thereof. The Public Officers Protection Act applies to both natural and artificial persons. See Ibrahim v JSC [1998] 14 NWLR (Pt 584) 1, Nwaogwugwu v President FRN [2007] 1 ALL FWLR (Pt 389)1327. The 3rd defendant in Paragraph 4.15 of the written address in support of the objection submitted as follows: Consequent on the above, we submit that the 3rd Defendant/Applicant in this suit is a public officer by virtue of his office. Therefore an action against him must commence within three months of accrual of cause of action. By 3rd defendant’s own submission and admission, the 3rd defendant has stated that he is a Public Officer. That being the position and the ground upon which this objection is predicated upon, it follows that he is a juristic person capable of suing and being sued. I find the 3rd defendant to be a Public Officer and so hold. Furthermore, the Police Pension Office is one of the Pension Offices included in the Pension Transitional Arrangement Department (PTAD) empowered to take over the payment of Pensions. I agree with learned counsel to the claimants that in the determination of issues of jurisdiction the applicable law is that which was in force at the time the cause of action arose and not that which was in force when the issue of jurisdiction was raised. At the time this suit was commenced the Pension Transitional Arrangement Department (PTAD) was not in existence and the Police Pension Commission was responsible for the payment of pension, gratuity including death benefit of Police officers. It would have been impossible for the claimants to have sued the Pension Transitional Arrangement Department since there was no such agency in place at the time this suit was filed. A party to an action is not permitted to approbate and reprobate. A cause of action is said to be statute barred if in respect of its proceedings it cannot be brought because the period laid down by the limitation has elapsed. See Egbe v Adefarasin [1987] 1 NWLR (Pt 47) 1 at 20, Udoh Trading Coy Ltd v Abere[2001] 11 NWLR (Pt 723) 114. The claimants submit that there is a continuance of injury. They have pleaded in paragraphs 10 to 28 of the statement of claim all the steps they have taken since their father died in December 1992 to get the defendants to pay his death benefits and gratuity. That in spite of all of these, the defendants have failed to pay their father’s benefits to them. The Limitation law is not absolute as it permits the exception of continuance of damage or injury as can be seen above. The cause of action therefore arises every day their late father’s gratuity and death benefits is not paid between the period of December 1992 and March 15, 2013 when this action was instituted. This is what the limitation law recognizes as continuance of damage or injury. The test on continuance of damage or injury has been laid down by the Supreme Court in the case of A-G Rivers State v A-G Bayelsa State [2013] 3 NWLR (Pt 1340) 123 at 144- 150. Continuance of damage or injury means continuance of the “act which caused the injury” and not the injury itself. The act that has caused the injury in this instance is the alleged failure by the defendants to pay the deceased’s benefits. Also see Aremo II v Adekanye [2004] 13 NWLR (pt 891) 572. I find that there is a continuance of damage or injury to the claimants who have been deprived of the gratuity and death benefits of their father. This being the case, the 3rd defendant and the other defendants in this suit are not protected by the provisions of Section 2(a) of the Public Officers Protection Act and I so hold. As at March 15, 2013, a fresh cause of action which had arisen. I hold that the suit is not statute barred. The 3rd defendant has argued that the subject matter of this suit does not fall within the jurisdiction of this court as envisaged by both the Constitution and the National Industrial Court Act 2006. From the forgoing facts of this case, the claimants are in this court to seek payment of their late fathers’ gratuity and pension as his registered next-of-kin. Section 254C (1) (k) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 provides: Notwithstanding the provisions of section 251,257, 272 any anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters- (k) relating to or connected with disputes arising from payment or non payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any civil or public servant in any part of the Federation and matters incidental thereto. From this provision it is clear that the claimants’ claim which is in respect of non payment of their late father’s gratuity and death benefits falls squarely within the jurisdiction of this court. The argument of the 3rd defendant in this regard is misconceived. This court has the jurisdiction to entertain this suit. This objection is brought in bad faith and is simply to waste the time of the court and the claimants. It is hereby dismissed in its entirety for lacking in merit. Costs of N25,000 to be paid by the 3rd defendant to the claimants. Ruling is entered accordingly. _____________________________ Hon. Justice O.A. Obaseki-Osaghae