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REPRESENTATION<o:p></o:p>

King Wilson, for the claimant.<o:p></o:p>

Abdullahi Abubakar, Senior State
Counsel, for the 1st and 4th defendants.<o:p></o:p>

M. U. Ibrahim, for the 2nd
and 3rd defendants.<o:p></o:p>

<o:p> </o:p>

RULING<o:p></o:p>

This is a transferred case from
the Federal High Court, Lagos Division. The claimant had filed this case at the
Federal High Court on 22nd January 2009; and by his amended
originating processes claimed the following reliefs –<o:p></o:p>

i.           
A declaration that the Plaintiff having sustained
gunshot wound at war front in the course of his professional duty and service
to the Nation is entitled to be well catered for and entitled to be treated at
the expense of the defendants.<o:p></o:p>

ii.           
A declaration that the Plaintiff having been wounded as
a result of the enemy action and having been recommended by his Command is
entitled to Purple Heart Medal Award as provided for in the Harmonised Terms
and Conditions of Service for Nigerian Armed Forces Officers (2007) Revised.<o:p></o:p>

iv.           
An order for the payment of the sum of €100,000 (One
Hundred Thousand Euro) or its Naira equivalent being the sum incurred by the
claimant during his foreign trip for better medical services outside the shores
of Nigeria.<o:p></o:p>

v.           
An order for the payment of all the allowances and
estacodes payable to an official of the same rank and file as the Plaintiff
since 1997 and interest of 10 % on the said amount since the date of accrual.<o:p></o:p>

vi.           
An order for the payment of the sum of N750,000,000,000.00
(Seven Hundred and Fifty Million Naira) being the sum payable on loss of
income, negligent treatment of the Plaintiff’s injury and cost of procuring
drugs.<o:p></o:p>

viii.           
An order directing the defendants to release the Course
Report of the Plaintiff hitherto withheld by the defendants.<o:p></o:p>

ix.           
An order directing the 3rd defendants to
release the Plaintiff’s NOKIA K750i or pay its equivalent value of N100,000.00
(One Hundred Thousand Naira).<o:p></o:p>

x.           
An order for a comprehensive life insurance scheme with
a registered insurance company taken by the defendants for the benefit of the
Plaintiff.<o:p></o:p>

xi.           
Payment of gratuities, terminal benefits, pensions
accruable to the Plaintiff in compliance with the Harmonised Terms and
Conditions of Service for Nigerian Armed Forces Officers 2007 (Revised).<o:p></o:p>

xii.           
Cost of this suit.<o:p></o:p>

<o:p> </o:p>

It was after the case was
transferred to this Court from the Federal High Court that the 2nd
and 3rd defendants filed on 27th August 2014 a
preliminary objection, an objection that the counsel to the 1st and
4th defendants also adopted together with submissions of the 2nd
and 3rd defendants. By the preliminary objection, the defendants are
praying this Court to decline jurisdiction in this case on the ground that the
case is statute-barred under the provisions of section 2(a) of the Public
Officers Protection Act. To the defendants, it is the statement of claim that
outlines a claimant’s case and so it is to it that a court must look in order
to ascertain if it has jurisdiction over the case, citing Ekezhi v. Military Governor of Bendel State [1992] 3 NWLR (Pt. 227)
39 and Korau v. Korua [1998] 4 NWLR
(Pt. 545) 212.<o:p></o:p>

<o:p> </o:p>

The defendants went on that the
claimant’s action is predicated on his compulsory retirement from the Nigerian
Army on 19th August 2008; and this suit was filed on 22nd
January 2009 i.e. more than three months after the cause of action accrued. As
such the suit is statute-barred having been caught by the Public Officers
Protection Act. The defendants then referred the Court to Ibeto Cement Co. Ltd v. AG Federation [2008] 1 NWLR (Pt. 1069) 470,
Min. FCT v. MH (Nig) Ltd [2011] 9
NWLR (Pt. 1252) 272 at 296 and Nasir v.
CSC, Kano State [2010] 6 NWLR (Pt. 1190) 253 at 276. The defendants also
referred the Court to the claimant’s reliefs i, ii, vi and vii, and paragraphs
15 of the statement of facts, and then submitted that they all show that the
cause of action that rise to these reliefs arose on 6th January 1998.
That the claims must accordingly fail given section 2 of the Public Officers
Act. Also that by paragraph 64 of the statement of facts, the claimant pleaded
that he was purportedly retired on 19th August 2008. That this means
that relief iii praying that the compulsory retirement be declared mala fide and malicious cannot also
stand on same ground. As for relief iv, that paragraphs 47 – 55 of the
statement of facts make it clear that the cause of action arose on 31st
August 2008; as such relief iv cannot stand on same ground. Aside from this
fact, that the claimant pleaded a letter dated 20th November 2006,
which letter indicated that he had made arrangements to procure medical
treatment at no cost to the Army. As for relief v, that it arose in 1997 and so
is also caught by section 2 of the Public Officers Protection Act. In terms of
relief viii, that paragraph 66 of the statement of facts show that the Course
Report was withheld since 2005, meaning that this too is caught by the
limitation law. As for relief ix, that paragraph 61 of the statement of facts
show the cause of action to have arisen on 14th August 2008; meaning
that this also is caught by the limitation law. Relying on a number of case law
authorities, the claimant concluded by calling on the Court to uphold the
ground of the objection and strike out this case.<o:p></o:p>

<o:p> </o:p>

In reacting to the defendants’
objection, the claimant adopted the sole issue raised by the defendants i.e.
that this case is statute-barred. To the claimant, assuming without conceding
that the claimant’s cause of action arose on 19th August 2008, the
Armed Forces Act Cap. A20 LFN 2004 negates the claimant approaching the Court
until he has exhausted the administrative remedies available to him under the
Act, citing section 178(1) of the Armed Forces Act, which provides that –<o:p></o:p>

If an officer
thinks himself wronged in any matter by a superior officer or authority and on
application to his commanding officer does not obtain the redress to which he
thinks he is entitled, he may make a complaint with respect to that matter to
the Forces Council.<o:p></o:p>

In other words, that time does
not begin to run against an officer whose cause of action has arisen but cannot
exercise same until he has exhausted the administrative remedies available to
him. That complaint made by an officer after he felt wronged must be addressed
and resolved one way or the other before approaching the Court. That in the
instant case, the claimant took steps after 19th August 2008
culminating in the defendants’ letter dated 29th December 2008 but
which was received by the claimant’s solicitor on 6th January 2009.
To the defendants then, the right to come to Court became available to the
claimant on 6th January 2009 and so this case cannot be said to be
caught by the Public Officers Protection Act. The claimant then cited section
178(2) and (3) of the Armed Forces Act, which provides as follows –<o:p></o:p>

(2) On
receiving a complaint under subsection (1) of this section, the Forces Council
shall investigate the matter and grant any redress which appears to the Forces
Council to be necessary or if the complainant so requires, the Forces Council
shall make its report on the complaint in order to seek the directions of the
President on the matter.<o:p></o:p>

(3) Subject to
subsection (1) of this section, an officer who feels he has been wronged in any
matter shall first exhaust the administrative remedies available to him under
this section of this Act before embarking on any other action.<o:p></o:p>

<o:p> </o:p>

The claimant continued that his
pleadings expressly show that the 3rd defendant acted in bad faith
in treating his complaint and petition. That the law is trite that the Public
Officers Protection Act does not avail or protect officers who acted mala fide or abused their office, citing
paragraphs 24, 25, 27 – 32, 34 – 37, 39, 40, 45, 49 – 51, 54, 56, 61 – 79, 81,
82 and 88 of the statement of facts, and arguing that Ibeto Cement Co. Ltd v. AG Federation [2008] 1 NWLR (Pt. 1069) 470
cited by the defendants is not helpful to their case given that the Court of
Appeal held that case that proven case of malice on the part of the public
officer means that the protection afforded him ceases to avail him.<o:p></o:p>

<o:p> </o:p>

The claimant also argued that the
injury complained of by him is a continuing act and as such the defendants
cannot rely on the Public Officers Protection Act, referring to Abiodun v. AG Federation [2007] 15 NWLR
(Pt. 1057) 359 at 412 – 413, Duzu v.
Yinusa [2010] 10 NWLR (Pt. 1201) 80 at 124 and AG Rivers State v. AG Bayelsa State [2013] 3 NWLR (Pt. 1340) 123 at
148 – 150. To the claimant, the act of the defendants in this case is a
continuing breach against the interest of the claimant as the defendants have
refused and or neglected to pay him his due and just entitlements as provided
under the Rules of the 3rd defendant. That section 2(a) of the
Public Officers Protection Act would never apply to such case, citing Offoboche v. Ogoja LG [2001] 16 NWLR
(Pt. 739) 458 at 485 and Aremo II v.
Adekanye [2004] 13 NWLR (Pt. 891) 572 at 593.<o:p></o:p>

<o:p> </o:p>

Another exception to the
limitation law, according to the claimant, is that it will not apply in cases
of recovery of land, breach of contract or claims for work and labour done,
citing Osun State Government v. Danlami
(Nig) Ltd [2007] 9 NWLR (Pt. 1038) 66 at 83 – 84 and referring to
paragraphs 1 and 10 of the statement of facts, which show the claimant to have
a contract with the 3rd defendant; and an employment contract is
first and foremost a contract, citing Iyere
v. Bendel Feed and Flour Mill Ltd [2008] 12 NCLR 1. The claimant concluded
this argument by urging the Court to hold that the defendants are not protected
under the Public Officers Protection Act as the action of the defendants is a
breach of contract.<o:p></o:p>

<o:p> </o:p>

In orally adopting his written
address, the claimant’s counsel drew the attention of the Court to the fact
that the defendants did not plead the issue of statute-barred in their
statement of defence and so cannot raise same at this juncture.<o:p></o:p>

<o:p> </o:p>

The claimant then concluded by
urging the Court to dismiss the preliminary objection with substantial cost as
same is frivolous and meant to cause unnecessary waste of litigation time.<o:p></o:p>

<o:p> </o:p>

The defendants reacted on points
of law. To the defendants, the claimant’s reliance on section 178(3) of the
Armed Forces Act and argument that time only begins to run after the exhaustion
of administrative remedies is a great misconception. That the letter of 18th
September 2008 written to the 1st defendant and copied to named
officers of the Senate, House of Representatives and Akwa Ibom State House of
Assembly, Governor of Akwa Ibom State, Chairman of Itu LGA, the Chief of
Defence Staff, Chief of Army Staff, etc is not in compliance with section
178(3) of the Armed Forces Act given that the claimant did not approach the
Armed Forces Council nor did he write to his Commanding Officer on the issues
of his claim before this Court. That the same applies to the letter of 2nd
December 2008 addressed to the 1st defendant and copied to
Attorney-General of the Federation, Headquarters 9 Brigade, Nigerian Army
Cantonment Ikeja, Governor of Akwa Ibom State and Speaker Akwa Ibom State House
of Assembly, in that it does not comply with section 178(1) of the Armed Forces
Act. That the claimant did not approach the appropriate authority; as such he
cannot claim that his action is not caught up by section 2 of the Public
Officers Protection Act. In any event, that the letter of 2nd
December 2008 at page 5 clearly indicated that the claimant was not interested
in contesting his compulsory retirement. The defendants concluded by approximating
the 1st defendant as Chairman of the Armed Forces Council to his
position as Visitor to a University. Citing Anya
v. Iyayi [1988] 3 NWLR (Pt. 82) 359, the defendants submitted that the 1st
defendant is a different person in law from the Chairman of the Armed Forces
Council. The defendants then urged the Court to uphold their objection.<o:p></o:p>

<o:p> </o:p>

COURT’S DECISION<o:p></o:p>

I heard learned counsel and
considered all the processes filed in this suit. The sole issue before the
Court is whether this instant case is statute-barred. The defendants think it
is, while the claimant thinks otherwise. The argument of the claimant is
structured at two levels: reliance on section 178(1) and (3) of the Armed
Forces Act as well as that his case comes within the exceptions to the Public
Officers Protection Act.<o:p></o:p>

<o:p> </o:p>

The argument of the claimant is
that by a combined reading of section 178(1) and (3) of the Armed Forces Act,
the claimant is enjoined to exhaust the domestic remedies by the Armed Forces
Act before he can come to Court; as such the present action is not
statute-barred. The problem with this argument is that a claimant relying on
that must plead same in his/her statement of facts. This is not the case in the
instant suit. The claimant did not plead in his statement facts that he
exhausted the domestic remedies before filing this suit to show that he
complied with the requirements of the Armed Forces Act as his counsel argues.
Paragraphs 69, 70 and 71 of the statement of facts relied upon by counsel to
the claimants when orally adopting his written address do not qualify as the pleadings
needed to authenticate a claim of exhaustion of domestic remedies before filing
an action in Court. In Dr (Mrs.) Mojisola
Olubunmi Nkiko v. Federal University of Agriculture Abeokuta unreported
Suit No. NICN/LA/385/2013 the ruling of which was delivered on 2nd
February 2015 this Court held that –<o:p></o:p>

I note the case
of Yare v. National Salaries, Wages and
Income Commission (NSWIC) [2013] 5 – 7 MJSC (Pt. I) 1, which appears to
hold that a claimant must not wait for the outcome of an appeal before coming
to Court, a position also held by my learned brother [Hon. Justice J. D.
Peters] in Dr Janet Titilayo Bamgbose v. Federal
University of Agriculture Abeokuta [unreported Suit No. NICN/LA/371/2013 delivered on 25th
March 2014]. But a closer reading of Yare
will show that the exhaustion of domestic remedies enjoined by statute as is
the case in the instant case was not an issue as such and was not so raised.
Secondly, even where domestic remedies are enjoined by statute, it would seem
that its requirement as such and the facts that give rise to it must be pleaded
if a plea of the limitation law is to be defeated by it.<o:p></o:p>

<o:p> </o:p>

By these authorities, a claimant
is not expected to wait for the outcome of an appeal before coming to Court;
and even if he did, he must plead the domestic remedies as such, the facts
giving rise to them and the fact of their exhaustion necessitating the filing
of the action. All of this was not the case in the instant suit. In any case, I
agree with the defendants that writing letters and copying varying officers of
Federal, State and Local Governments cannot be the exhaustion of administrative
remedies enjoined by section 178 of the Armed Forces Act. I accordingly do not
agree with the claimant in terms of his argument as to exhaustion of domestic
remedies before coming to Court. That argument is hereby rejected.<o:p></o:p>

<o:p> </o:p>

The claimant had all through argued
that his case comes under the exceptions to the Public Officers Protection Act.
The arguments of the claimant here as to the limitation law not applying to
cases of recovery of land, breach of contract or claims for work and labour
done (Osun State Government v. Danlami
(Nig) Ltd [2007] 9 NWLR (Pt. 1038) 66 at 83 – 84); as to continuance of
injury or damage (AG Rivers State v. AG
Bayelsa State [2013] 3 NWLR (Pt. 1340) 123 at 148 – 150); as to acting in
bad faith; and as to the limitation law being pleaded; have all been canvassed
by the law firm of the claimant in the instant case in another case, 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 3rd
July 2014, where this Court rejected the arguments. I am surprised that the
same law firm is here canvassing the same rejected arguments. For all the
reasons already given and the authorities cited in Mr. Iyede Onome Festus & anor v. Management Board of Delta State
University Teaching Hospital & anor, I equally reject the claimant’s
argument in the instant case. I only need to remind the claimant to now and properly
note (so as not to repeat the folly of re-canvassing rejected arguments) that
the limitation law applies to contracts of employment, the defence of
limitation of action need not be pleaded before it can be relied on (Oniode Babajide v. The Nigerian Army &
anor unreported Suit No. NICN/LA/61/2014 the ruling of which was delivered
on 25th February 2016), and 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 and Obiefuna v. Okoye [1961] All NLR 357.<o:p></o:p>

<o:p> </o:p>

On the whole, I agree with the
defendants that this case is statute-barred, the cause of action being the
compulsory retirement of the claimant on 19th August 2008. Having to
file this action in this Court on 22nd January 2009 means that it
was filed outside of the 3 months enjoined by section 2(a) of the Public
Officers Protection Act. This being the case, the suit is statute-barred and as
such this Court cannot exercise jurisdiction over it. I so find and hold. As
enjoined by Nigerian Ports Authority Plc
v. Lotus Plastics Ltd & anor [2005] LPELR-2028(SC); 19 NWLR (Pt. 959)
158, this case is hereby dismissed.<o:p></o:p>

<o:p> </o:p>

Ruling is entered accordingly. I
make no order as to cost.<o:p></o:p>

<o:p> </o:p>

……………………………………<o:p></o:p>

Hon. Justice B. B.
Kanyip, PhD<o:p></o:p>