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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: FEBRUARY 4, 2016 SUIT NO: NICN/LA/582/2014 BETWEEN Major D. I. Des-Dokunbo - Claimant AND 1. The Nigerian Army 2. The Chief of Army Staff - Defendants 3. The Attorney-General of the Federation REPRESENTATION Mrs. Franca Okafor for the Claimant/Respondent. J. A. Asemota for the Defendants/Applicants. RULING On 23/2/11, the Claimant approached the Federal High Court sitting in Lagos by his Writ and sought the following reliefs against the Defendants - 1. A Declaration that the Plaintiff is a Lieutenant in the Nigerian Army by virtue of the MS Ltr reference No: NA"%"/MS dated the 29th day of Nov 2007 and titled PROMOTION NA OFFICERS NUMBERS 1,2,3,and 4 as well as ARMY ORDERS 2007. 2. A Declaration that the compulsory retirement of the plaintiff from the service of the Nigerian Army herein the 1st defendant via the letter reference No: AHQMS/GI/300/226 dated 20 October 2009 as well as the act of reducing him from the rank of Major to captain for offences of incompetence, indolence and disloyalty without giving him a fair hearing or notifying of such offences is unlawful, illegal, null and void and a breach of his right to fair hearing under s. 36(1) of the 1999 Constitution and Article 7(1)(b) and (d) of the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act Cap. A9, Laws of the Federation, 2004. 3. A Declaration that the defendants are not entitled in law to retire the plaintiff under s. 43(a) of the Armed Forces Act from the service of Nigerian Army, herein the 1st defendant pending disciplinary action. 4. A Declaration that the employment of the plaintiff being of statutory flavour can only be terminated upon strict compliance with the law and terms and conditions governing his employment. 5. An Order setting aside the aforesaid letter reference No: AHQMS/G1/300/226 dated 20 October for being unlawful, illegal, unconstitutional, null and void and consequently of no effect whatsoever. 6. A Declaration that the plaintiff is still in the service of the Nigerian Army and consequently is entitled to all the rights and privileges including salaries, allowances, promotion etc attached and befitting his rank, status and experience from 19 October 2009 till the date of the final determination of this suit. 7. An Order compelling the defendants to re-instate the plaintiff to the service of the Nigerian Army in the rank of a Lieutenant-Colonel with all the rights and privileges including salaries, allowances, promotion etc befitting his rank, status and experience from 19 Oct 2009 till the date of the final determination of this suit. 8. Ten Million (=N=10,000,000.00) as general damages. 9. Five Million Naira (=N=5,000,000.00) as exemplary damages. 10. An Order of Injunction restraining the defendants by themselves, their agents, representatives etc from taking any action whatsoever either relating to or pursuant to the aforesaid letter, subject of this suit pending the final determination. 11. Cost of this action. Pursuant to an application by the Plaintiff, this case was transferred to this Court by Tsoho J of the Federal High Court on 17/10/14. This is in consequence of the Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010 which conferred exclusive jurisdiction on the national Industrial Court of Nigeria to hear and determine matters on labour and industrial relations and related matters. The Defendants/Applicants brought this application by way of Notice of Preliminary Objection dated and filed on 23/7/15. It challenged the jurisdiction of this Court to hear and determine this case on the ground that the Claimant's suit is statute barred by virtue of section 2(a) of the Public Officers Protection Act Cap. P41 Laws of the Federation of Nigeria, 2004. The preliminary objection was brought pursuant to Section 2(a), Public Officers Protection Act Cap. P4, Laws of the Federation of Nigeria, 2004, Order 11 Rule 1(1), National Industrial Court Rules, 2007 and under the inherent jurisdiction of the Court. When the preliminary objection came up for hearing on 17/11/15, learned Counsel to the Defendants/Applicants adopted his written address in support of the objection as his submission and urged the Court to dismiss the suit. In the said written address dated and filed 23/7/15, learned Counsel had set down a lone issue for determination as follows : ''Whether the action against the Defendants/Applicants is statute barred by virtue of section 2(a) Public Officers Protection Act (Cap. P41), Laws of the Federation of Nigeria, 2004. Arguing this lone issue, learned Counsel submitted that in determining whether or not a Court has jurisdiction to determine a matter it has a duty to examine the statement of claim, citing Adekoya v. FHA (2008)6 MJSC 66 & Rayleigh Industries (Nig.) Limited v. Nwaiwu (1994)4 NWLR (Pt. 341) 760. Referring to paragraph 22 of the Claimant's statement of claim, learned Counsel submitted that the cause of action in this suit arose on 26/10/09 while the writ of summons and the statement of claim were dated and filed on 23/2/11 sixteen months after the Claimant was compulsorily retired. Citing Ekeogwu v. Aliri (1991)2 LRCN 613, Nasir v. CSC Kano State (2010)2 MJSC 1, learned Counsel urged the Court to hold that the present suit is statute barred not having been brought within the time allowed by the statute since by section 172, Constitution of the Federal Republic of Nigeria, 1999, as amended and the case of Jimoh Ibrahim v. JCC (1998)14 NWLR (Pt. 584) 1, the Defendants/Applicants are public officers. Counsel urged the Court to strike out this suit for lack of jurisdiction. Learned Counsel for the Claimant/Respondent also adopted his written address filed on 11/8/15 as his submission in opposition to the objection. In it Counsel also set down the following lone issue for determination - ''Whether the preliminary objection filed by the defendants/applicants is competent in law and if so, whether this suit as constituted is statute barred''. Arguing this lone issue, learned Counsel submitted that a defence of statute of limitation is a statutory one which the law requires whoever desires to raise same to specifically plead otherwise it will be incompetent and liable to be struck out, citing Savage v. Rotibi (1940)10 WACA 264, Iheanacho v. Ejiogu (1993)4 NWLR (Pt. 389) 324 & Mohammed v. Military Governor of Plateau State (2001)16 NWLR (Pt. 740) 524. Counsel submitted that the Defendants/Applicants did not plead the defence of limitation in their statement of defence. Counsel prayed the Court to strike out this objection for being incompetent. Secondly, learned Counsel argued that this suit is labour related as the claim of the Claimant is on illegality and unconstitutionality of his retirement in breach of the provisions of the law applicable to his employment which is contractual in nature. Learned Counsel submitted, relying on Salako v. LEDB 20 NLR 169 & FGN v. Zebra Energy Limited (2002)3 NWLR (Pt. 754) 471, that an action for breach of contract, for recovery of land and claims for work and labour done do not fall within the provisions of the Public Officers Protection Act. Learned Counsel urged the Court to so hold and strike out this preliminary objection. On 4/9/15, learned Counsel to the Defendants/Applicants filed a 9-page reply on points of law. Counsel submitted that it amounts to an error to claim that Public Officers Protection Act does not apply to contract of service. Referring to the Judgment of Rhodes-Vivours JSC in Olagunju & Anor. v. PHCN (2011)4 MJSC 114, submitted that the Act applies to contracts of service in the public service of the Federal Republic of Nigeria. Secondly, on the submission that statute of limitation must be specifically pleaded, learned Counsel submitted that the law is settled that objection to jurisdiction can be raised at any time during the proceedings and even on appeal. Finally, learned Counsel submitted that the suit of the Claimant is not about payment of his pensions and gratuity since he has not accepted his retirement in the first place. Counsel prayed the Court to dismiss this suit in its entirety. I read and understood all the processes filed by learned Counsel on either side. I also listened with attention to the oral submissions of learned Counsel for the parties. Having done so, I note that the sole issue that calls for the just determination of this case is - whether this Court has jurisdiction over this suit considering the Public Officers Protection Act. A challenge based of statute of limitation constitutes a challenge to the jurisdiction of the Court to hear and determine a cause or matter. Issue of jurisdiction once raised, it is imperative that it be resolved one way or the other. Jurisdictional issue is a fundamental and critical issue. It is a challenge that can be raised at any point in the cause of the proceedings. It may even be raised on appeal. In any event, jurisdiction is not an issue of fact. It is one of law. That being the case, it can even be raised by a trial Judge suo motu the only proviso being that a trial Judge must allow parties to proffer their addresses on same before delivering a Ruling. 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. 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). Where an action is instituted outside the time allowed by the statute, the Court which hitherto had jurisdiction to hear and determine same is automatically divested of that adjudicatory power. In much the same vein, the right available to a Claimant or Plaintiff in such a situation is one that cannot be enforced through the judicial process. In determining whether or not a suit is caught by the statute of limitation, the starting point is the examination of the date the cause of action arose vis-a-vis the date the suit was instituted. The appropriate focus is certainly the statement of facts in the instant case. Now, when did the cause of action in this case arise? The writ of summons and the statement of claims in this case were filed on 23/2/11. Upon perusal of the pleadings filed, I found paragraph 17 of the statement of claim very crucial to the determination of the issue in contention here. It reads thus - ''The plaintiff states that it was while awaiting a reply to his suspension mentioned in paragraph (14) above and before the confirmation of the findings and sentence passed on him by the court-martial that he was served on Monday 26th day of October 2009 with the Letter of COMPULSORY RETIREMENT NA OFFICER No: AHQMS/G1/300/22 6 dated 20 October 2009 herein pleaded''. The cause of action in this suit arose on 20/10/09 by virtue of the letter of compulsory retirement so dated. By the nature of the Defendants as public officers, the Claimant must commence action against them within three months of the accrual of cause of action by virtue of section 2(a) of the Public Officers' Protection Act. This suit was however not commenced until 23/2/11 - a period of almost two years from the accrual of cause of action. It is beyond doubt that this suit was not commenced within the time allowed by the applicable statute. Once therefore a suit is not commenced in compliance with the statute, the jurisdiction of the Court is not properly invoked for the purpose of adjudication. For the Court to therefore proceed to adjudicate on this suit will amount to an exercise in futility. I find and hold that this Court lacks jurisdiction to hear and determine this case same not having commenced within the time limit allowed by the statute. Finally and for the avoidance of doubt, I hold that the jurisdiction of this Court not having been properly invoked, it lacks jurisdiction to entertain same. Accordingly, this case is dismissed. Ruling is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge