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REPRESENTATION O. O. Iranloye, Miss Ifeoma Ukandu, for the claimant. Mrs. Olayemi Badewole, with K. C. Ogili, for the defendants. RULING On 10th February 2014, the claimant took up a complaint (with other accompanying originating processes) against the defendant praying for the following reliefs – 1) A declaration that the purported verbal termination of claimant by the Garrison Commander without compliance with due process of formal trial by the Brigade Commander is illegal and liable to be set aside. 2) A declaration that the non-trial of claimant on the offence of Robbery which was the reason for his dismissed claimant right to Fundamental Human Right to Fair Hearing and is liable to be set aside. 3) A declaration that by the defendants circular letter referenced 82 RO/254/33/53A dated October 17th 2006 posting claimant is still in the service of the defendant. 4) An order directing the defendants to comply with its circular letter referenced 82 RO/254/33/53A dated October 17th 2006 posting claimant out of Calabar. 5) An order directing defendant to pay all arrears and salaries due to the claimant from 5th, 2006 until date. 6) Cost of this suit. The defendant entered formal appearance and then filed a motion on notice on 30th January 2015 pursuant to section 36 of the 1999 Constitution, section 8(1)(a) of the Limitation Law of Lagos State Cap. L67 Laws of Lagos State 2003, section 147(1), (2) and (4) of the Armed Forces Act Cap. A20 LFN 2004 and under the inherent jurisdiction of the Court; and praying for the following – 1) An order dismissing the claimant’s suit on the grounds that the claim/complaint disclosed therein is statute-barred. OR An order striking out this claimant’s suit for want of jurisdiction. 2) And for such further order(s) as the Honourabe Court may deem fit to make in the circumstances of the case. The fuller grounds upon which the defendant filed the motion are – a) The complaint of the claimant as stated in the Form of Complaint and statement of facts dated 10th February 2014 and filed on 10/2/2014 before the Honourable Court is based on the claimant’s contract of employment as a soldier in the service of the 1st defendant. b) By the claimant’s pleadings herein, the said employment was disengaged when the claimant was dismissed on 5th May 2006. c) The reliefs claimed in this suit mainly seeking declarations that the claimant is in employment of the 1st defendant since 5th May, 2006 is statute-barred. d) The claimant’s employment with the 1st defendant is inter alia subject to and regulated by the provisions of the Armed Forces Act Cap. A20 LFN 2004. e) By virtue of the provisions of the Armed Forces Act, the claimant upon being dissatisfied with the sentence passed dismissing him from the 1st defendant’s employment is obliged to petition appropriate superior authority against the sentence/award/finding not later than one month after the award/sentence in May 2006. f) By virtue of the provisions of the Armed Forces Act, the claimant is obliged to comply with the provisions of section 147(1), (2) and (4) of the Armed Forces Act by petitioning appropriate superior authority in the army to complain against his dismissal prior to the institution of this proceedings. In support of the motion are an affidavit and a written address. The claimant reacted by filing a written address; and the defendant filed a reply on points of law. To the defendants, it is evident from the statement of facts and reliefs filed by the claimant that the basis of the complaint is the termination/disengagement of the claimant from the 1st defendant’s employment in May 2006, nearly 8 years ago. That the claimant who by his statement of facts was a soldier is subject to both military law and civil law, but primarily by the Armed Forces Act Cap. A20 LFN 2004, which provides for the command, maintenance and administration of the Armed Forces of the country. The defendants continued that the claimant since 2006, when he was disengaged, took no step to seek redress within the provisions of the Armed Forces Act as he is statutorily obliged to do within one month. That it took the claimant 7 years to approach this Court, a period clearly outside that statutorily allowed for one to come to Court. The defendants then raise two issues for the determination of the Court, namely – a) Whether in view of the facts/claims disclosed before the Honourable Court, the claimant’s claim is statute-barred and should be dismissed. b) Whether in the light of the fact that the claimant failed to comply with the statutory provisions of section 147(1), (2) and (4) of the Armed Forces Act, the Honourable Court lacks jurisdiction to entertain the claimant’s claim. Regarding issue a), the defendants first reiterated the importance of jurisdiction and the fact that it cannot be acquired by consent of the parties, imposed by the Court or enlarged by estoppel or implication, citing 7 case law authorities in the process. The defendant went on to acknowledge that in determining whether a court has jurisdiction, it is the claim of the claimant as set out in the statement of facts that must be looked into, citing Gulf Oil Co. (Nig) Ltd v. Oluba [2002] 12 NWLR (Pt. 780) 92 at 107 – 108, AG, Anambra State v. AG, Federation [2007] All FWLR (Pt. 379) 1218 at 1231, Obi v. INEC [2007] 7 SC 268, Musa Dangida v. Mobil Prod. (Nig) Unltd [2002] 7 NWLR (Pt. 766) 482 at 496 and 502 and Ibrahim v. Gaye [2002] 13 NWLR (Pt. 784) 267 at 302. The defendants then submitted that because the claimant’s cause of action (which is the termination of his employment) arose in May 2006 his case is accordingly statute-barred, it being a simple contract of employment, and so this Court has no jurisdiction over this case, relying on section 8(1)(a) of the Limitation aw of Lagos State, which lays down six years as the period within which to file this action. The defendants then submitted that being statute-barred, the case is liable to be dismissed, citing Wapic Plc v. Adeyeri [2003] 12 NWLR (Pt. 835) 517, Otim v. IGP [2001] 11 NWLR (Pt. 724) 268 at 285 and Ibrahim v. JSC [1998] 14 NWLR (Pt. 584) 1. The defendants proceeded to argue that the claimant did not comply with the requirements in section 147(1), (2) and (4) of the Armed Forces Act Cap. A20 LFN 2004, which provides as follows – 147. Review of summary findings and awards (1) Where a charge has been dealt with summarily and the charge is not dismissed, the authority specified in subsection (4) of this section may review the finding or award either upon a petition submitted under subsection (2) of this section or at any time if facts material to the case arise which were not available during the trial. (2) A person convicted and sentenced summarily may petition against the finding or award or both to the authority not later than one month after the finding or award was made. (3)... (4) In this section, “the authority” means appropriate superior authority. To the defendants, these provisions are meant to ensure that armed forces personnel such as the claimant utilize and exhaust the internal redress mechanisms within the military institution before rushing prematurely to burden the civil courts. That the claimant failed to so utilize section 147 before rushing to this Court. In conclusion, the defendants submitted that the claimant’s action be dismissed. The claimant in reaction framed one issue for the determination of the Court, to wit: Whether from the facts and the processes before the Court for determination, it is proper for the defendant’s to raise such defense in their preliminary objection without filing their statement of defence. To the claimant, the defendants cannot raise such an objection where such defence must be specifically pleaded by the defendants in their pleadings. That there is need for the defendants to file their defence and to plead a limitation statute when relying on it. That demurrer had been abolished and party should raise by its pleadings any objections it seeks to rely on. That the defendants are not properly before the Court and cannot rely on the statute of limitation defence for failing to comply with the rules of court by filing pleadings. That any party who seeks to rely on defence of limitation of time must raise same in the pleadings, citing NIIA v. Mrs. T. O. Ayanfalu [2006] All FWLR (Pt. 325) 141. To the claimant, the Public Officers Protection Act (like fraud, estoppel and res judicata) is a special defence which must be specifically pleaded before it can be relied upon just so that the plaintiff is not taken by surprise or ambushed; and that the principle of limitation of action is used as a defence in an action in tort and contract amongst other actions. That the law requires that it must be specifically pleaded or otherwise it is deemed to have been waived, citing Shamsideed Abolore Bakare v. Nigerian Railway Corporation [2007] All FWLR (Pt. 2007) 1579. The claimant went on to submit that apart from the arrangement by the defendants, which is being challenged, there is no letter officially disengaging him. That the act of the defendants not officially writing to disengage the claimant till date constitutes a continuous breach which renders inapplicable the limitation act. That in respect of a continuous act, time will continue to run until steps are taken to abate same. The claimant concluded by submitting that his action subsists and the limitation act does not apply, urging the Court to dismiss the defendants’ preliminary objection. In their reply on points of law, the defendants submitted that since they filed an affidavit in support of their motion and the claimant did not file a counter-affidavit, the claimant must be deemed to have admitted as true all the depositions in the said affidavit in support; as such that this Court is entitled to rely on the said depositions which require no further proof, Ajomale v. Yarduat (No. 2) [1991] 5 NWLR (Pt. 191) 266, IMB v. Dabiri [1998] 1 NWLR (Pt. 533) 284 and Cheshe v. Nicon Hotels Ltd [1998] 12 NWLR (Pt. 576) 82 at 90. To the defendants, the facts deposed to in paragraphs 7 to 17 of the affidavit in support are deemed to be admitted by the claimant with this Court bound to follow the judicial authorities just cited. The defendants then went on that the claimant’s argument that the defendants did not plead (since no statement of defence was filed) the issue of the claimant’s case being statute-barred is not supported by law. That the claimant failed to state which rule of this Court forbids the defendants from raising a point of law as relates to statute of limitation by way of motion prior to filing a statement of defence. Secondly, that the rules of this Court do not preclude the defendants from raising objections on points of law before filing pleadings. That no special procedure is prescribed under the rules of this Court for raising the special defence of statute of limitation. To the defendants, the law is trite that the objection on point of law as relates to statute of limitation is properly raised by them before the filing of a statement of defence given that the point of law is a jurisdictional issue which can be raised at any time, even orally or on appeal, relying on Nasir v. CSC Kano State [2010] 1 – 2 SC 65 and Ondo State v. Kolawole [2008] 4 – 5 SC (Pt. II) 158. The defendants concluded by submitting that the claimant did not contest the defendants’ submission that this suit was instituted prematurely and is incompetent because the claimant failed to fulfill the condition precedent in section 147(1), (2) and (4) of the Armed Forces Act, urging the Court to dismiss the claimant’s action. COURT’S DECISION I heard learned counsel and considered all the processes filed regarding the matter at hand. In support of their motion on notice, the defendants filed an affidavit of 18 paragraphs deposed to by Mrs. Foluke Toye-Salami, one of the counsel in the law firm of counsel for the defendants. The claimant did not file any counter-affidavit. This led the defendants to submit in their reply on points of law that the averments in especially paragraphs 7 – 17 of the affidavit must be deemed as true given that no counter-affidavit was filed by the claimant. The problem is that all that the defendants did in the supporting affidavit was either to rehearse the averments in the statement of facts or come to conclusions. See, for instance, paragraphs 4 – 17 of the said affidavit in support. In this sense, the affidavit in support offends section 115(2) of the Evidence Act 2011, which provides that “an affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion”. In any event, the law is that it is the initiating or originating processes only that can be looked into when determining whether or not a matter is statute-barred. See Resque Constuction Co. Ltd & anor v. Adesole & ors [2013] LPELR-22141(CA) where His Lordship Galinje, JCA held at pages 18 – 19 that – The law is settled that in order to determine whether a suit is statute barred or not, the only court processes to look at are the writ of summons and the statement of claim which contain the plaintiff's claims. It is the claim of the plaintiff as couched on the writ of summons and the statement of claim that determines whether a suit is statute barred or not, and not the statement of defence. See also CBN v. Amao [2007] All FWLR (Pt. 351) 1490 at 1526. It is superfluous, therefore, that the defendants deemed it fit to file the supporting affidavit they did. The originating processes of the claimant are more than sufficient for the defendants to argue their case. No wonder, and quite rightly at that, the claimant did not bother to file any counter-affidavit. For, however, offending section 115(2) of the Evidence Act 2011, the defendants’ affidavit in support is incompetent and so struck out. The issue before the Court is whether this action is statute-barred. While the defendants argue that it is, the claimant argues otherwise. The argument of the claimant is based on two grounds: that the defendants did not plead the fact of this matter being statute-barred for they did not file any statement of defence; and secondly, that the breach complained of is continuance and so renders the limitation law inapplicable. In arguing the first ground, the claimant likened the Public Officers Protection Act (i.e. the limitation law) to fraud, estoppel and res judicata. The question whether a matter is statute-barred i.e. whether it is governed by the limitation law is one of law (actually goes to jurisdiction, as per Owners of the MV “Arabella” v. Nigeria Agricultural Insurance Corporation [2008] 5 – 6 SC (Pt. II) 189 and Emiatar v. The Nigerian Army & 4 ors [1999] 12 NWLR (Pt. 631) 364 at 372; [1999] 9 SCNJ 52), which the defendants rightly submitted, can be raised even orally at any stage of the proceedings. To require this to be first pleaded before it can be raised is a gross misunderstanding of the law. Not only did the Rules of this Court not state so, the weight of case law authorities goes against the stance of the claimant. For instance, in Standard Cleaning Service Co. v. The Council of Obafemi Awolowo University, Ile-Ife [2011] LPELR-4977(CA), the Court of Appeal relied on a number of cases including the Supreme Court decision in NDIC v. CBN [2002] 7 NWLR (Pt. 766) 272 at 296 – 297; [2002] 3 SC 1, and held that the issue of jurisdiction is not a matter for demurrer proceedings and so it does not always follow that a defendant must first plead in order to raise the issue of jurisdiction. In Liverpool and London Steamship Protection and Indemnity Association Ltd v. M/T Tuma & ors [2011] LPELR-8979(CA), Okoro, JCA (as he then was) held that an objection as to jurisdiction can be taken on the basis of the statement of claim, or it can be taken on the evidence received or by a motion on notice supported by affidavit given the facts upon which reliance is placed; and that this should not be confused with demurrer. Pastor Sunday Falodun Akeredolu v. James Femi Omiyale & ors [2013] LPELR-22800(CA) held the issue of jurisdiction and demurrer to be poles apart and different. To the Court of Appeal, the issue of jurisdiction is not a matter for demurrer; as such an application by way of a preliminary objection which seeks an order to the effect that the action is incompetent, statute-barred and that the court lacks jurisdiction cannot be equated with the doctrine or plea of demurrer. The Court of Appeal went on that such an application/preliminary objection can be filed/raised and subsequently taken/heard without or before the filing of the statement of defence. See further Lasisi Akanji Oluode & anor v. Mr. Waidi Ishola Abesupinle [2008] LPELR-4424(CA) and Wuro Bogga Nig. Ltd & anor v. Hon. Minister of FCT & ors [2009] LPELR-20032(CA). Given these authorities, and of all the reasons given, the argument of the claimant in that regard fails and is hereby rejected. Before addressing the second ground upon which the claimant reacted, it is useful to ascertain whether or not the claimant’s case is statute-barred. When a court is called upon to decide whether a case is statute-barred, all the court must do is look at the originating processes of the claimant and look out for two things: when the claimant states his cause of action arose; and when he filed his suit before the Court. See Mrs. O. Adekoya v. Federal Housing Authority [2008] 4 SC 167 where it was held that limitation of action is determined by looking at the writ of summons or the statement of claim alleging when the wrong was committed which gave the plaintiff the cause of action and by comparing that date on which the writ of summons was filed. But first, it must be determined what the cause of action is. Cause of action is said to consist of all those things necessary to give a right of action. The things so necessary must have happened and so includes every material thereof that entitles the plaintiff to succeed that the defendant has the right to traverse. See AG, Federation v. AG, Abia State & ors [2001] 11 NWLR (Pt. 725) 689 at 733. From the reliefs claimed by the claimant and his averments in the statement of facts, the claimant is complaining about events that occurred in 2006 regarding his employment with the defendants. See paragraphs 11 – 21 of the statement of facts. In summary, he alleged that while he was allegedly dismissed on 5th May 2006, by 17th October of same year, a circular was released listing him among officers for posting. He is accordingly praying for the setting aside of the verbal termination and compliance with the circular of 17th October 2006. There is no question, therefore, that the claimant’s cause of action is the alleged verbal termination/dismissal which occurred on 5th May 2006; and I so find and hold. This being the case, and having filed this suit on 10th February 2014, it means that the case was filed over 7 years after the cause of action arose. The case is accordingly outside of the limitation period; whether of the Lagos State Limitation Law or the Public Officers Protection Act. The case is, therefore, statute-barred; and I so find and hold. See Joshua Mnenge v. Nigerian Army unreported Suit No. NICN/IB/22/2012 the ruling of which was delivered on December 18, 2012 where this Court came to same conclusion. Only recently, my brother judge Dele Peters J. dismissed a similar case on the ground that it was statute-barred. See Major D. I. Des-Dokunbo v. The Nigerian Army & 2 ors unreported Suit No. NICN/LA/582/2014 the ruling of which was delivered on February 4, 2016. The claimant, however, and this is the second ground upon which the claimant reacted as to the objection of the defendants, sought refuge under the continuance of damage or injury exception to section 2(a) of the Public Officers Protection Act, arguing that the failure till date of the defendants to officially write to him formally disengaging him from service constitutes a continuous breach which renders inapplicable the limitation law. Here, it appears that counsel to the claimant does not even know the meaning of continuing damage or injury as defined by case law. It must be noted that the definition of the phrase “continuance of the injury” by case law authorities means continuance of the “act which caused the injury” and not the injury itself. See Okafor v. AG, Anambra State [2001] FWLR (Pt. 58) 1127 at 1146 D – G relying on the English Court of Appeal case of Carrey v. Bermondsey Metropolitan Bourough Council [1903] 675 P. 447; 20 TLR 2, Amamiwe v. The Local School Board [1971] 2 NMLR 57 at 58, Obiefuna v. Okoye [1961] All NLR 357, AG, Rivers State v. AG, Bayelsa State & anor [2013] 3 NWLR (Pt. 1340) 123 at 144 – 150, Hon. Runyi Kanu (JP) & ors v. The Attorney-General & Commissioner for Justice Cross River State & ors [2013] 32 NLLR (Pt. 91) 63 NIC, Mr. Iyede Onome Festus & anor v. Management Board of Delta State University Teaching Hospital & anor unreported Suit No. NICN/LA/312/2013 the ruling of which was delivered on July 3, 2014 and Mahmoud Bello & ors v. Nigeria Customs Service Board (supra). In the instant case, the act which caused the injury is the verbal termination of the claimant’s employment. This cannot be termed a continuing damage or injury as to justify the application of the “continuing damage or injury” exception of the limitation rule as the counsel to the claimant argues. The argument of counsel to the claimant in that regard has no merit whatsoever and is accordingly rejected and hence dismissed. The defendants’ additional argument that the claimant did not comply with the requirements in section 147(1), (2) and (4) of the Armed Forces Act Cap. A20 LFN 2004 cannot be sustained because the subsections do not compel any act on the part of the person convicted and sentenced. Subsection (2), for instance, which is directly relevant provides that the “person convicted and sentenced summarily may petition against the finding or award or both to the authority not later than one month after the finding or award was made”. The use of the word “may” in this provision cannot be said to compel the filing of a petition before one can approach the court. The argument of the defendants in that regard fails and so is rejected. On the whole, therefore, the preliminary objection of the defendants has merit and is hereby sustained. The case is accordingly dismissed. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip, PhD