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: ANTHONY EGHIEYE Esq, for the Claimants E. OMOTAYO OJO Esq, for the 1st Defendant M. Y. ABDULLAHI Esq, for the 2nd Defendant R U L I N G The claimants filed this Complaint on 11th November, 2015 along with the Statement of Facts, Claimants’ Statement on Oath, claiming against the defendants jointly and severally as follows: 1. The sum of N4, 271,400.00 being money had and received from laptops deductions made by the Defendants from 189 teachers/Claimants for the month of June, July, August and September 2013 at the rate of N5, 650 per month from each Claimant. 2. The sum of N114, 912 being 27 additional laptops deductions for 1 month - at N608 x 189 = N114, 912 Total = N4, 271,400 + N114, 912 = N4, 386,312.00 3. 10% court rate interest from the date of judgment until the judgment debt is finally liquidated. 4. The Claimants further stated that the Defendants may pay the amount stated above with costs to the Claimant or the Claimant’s legal practitioner within the time allowed by the rules of this Court. 1st defendant filed a NOTICE OF PRELIMINARY OBJECTION on 24th June, 2016 and dated same day, praying the Court to strike out or dismiss this Suit for being incompetent and Statute Barred. GROUNDS FOR THE OBJECTION 1) That the Claimant instituted this action outside the three months contrary to Section 2(a) of the Public Officers Protection Act, CAP P41, LFN 2004. 2) The Originating process before this Honourable Court offends the provisions of Order 3 Rule 4(iii) of the National Industrial Court Rules 2007 as a result of which it is incompetent. WRITTEN ADDRESS IN SUPPORT OF PRELIMINARY OBJECTION ISSUE Whether this Honourable court has jurisdiction to entertain and determine this suit, considering that it is incompetent having been filed contrary to the rules of this Honourable court and the law. Learned Counsel to the 1st defendant, E. Omotayo-Ojo submitted that in order for the court to determine whether an action is statute barred, all that the court needs to consider is the writ of summons and the statement of claim. CBN V. AMAO (2007) ALL FWLR (Pt.351) 1490 at 1526. He further submitted that the position of the law is clear that if an action is brought after the expiration of three months after the commission of the act or injury being complained against a public officer, the action cannot be instituted as it becomes statute barred. Section 2(a) of the Public Officers Protection Law CAP 111, Laws of Northern Nigeria 1963; Chief Yakubu Sanni V. Okene Local Government (2005) 14 NWLR (Pt.944)60. It is 1st defendant’s counsel’s submission that the claimants having failed to file this action within the period as stipulated by law, fails to the extent of its inconsistency, thereby robbing the court of its jurisdiction. CBN V. Okojie (2015) LPELR- 24740 (SC). 1st defendant’s counsel’s also argued further that the claimants have not complied with the provisions Order 3 Rule 4 (iii) of the National Industrial Court Rules, 2007 as the claimants failed to attach the list of witnesses as required under the Rules of court. Counsel contended that the instructive word used in the instant provision of the law is the word “shallâ€, which has been described to be a word of command which must be given compulsory meaning. OFFOMAH V. AJEGBO (2000) 1 NWLR (Pt. 641) p. 498. Submitting that this means that the Rules of this Honourable court makes it mandatory for the claimants to attach list of witnesses along with its originating process, which they have failed to do; and that it is trite that Rules of court are meant to be obeyed and not flouted. FBN PLC V. TSA/ND. Ltd (2010) 15 NWLR (Pt. 1216)247 SC. The 2nd defendant had filed a Conditional Memorandum of Appearance with a Statement of Defence dated 11th April 2016, on the 12th April 2016. The 2nd defendants has in their Statement of defence raised two preliminary points of law; That the claimants processes did not comply with Order 3 rule 1 and That the complaint was not sealed by the franking legal practitioner and That the 1st defendants Is not a juristic body. This matter was called up on four separate dates; 22nd November 2016, 13th December 2016, 16th December 2017 and 31st January 2017. At all these dates the parties were absent at each adjourn date, as were the Counsel to the 2nd defendant, the claimant counsel made one appearance on the 16th December 2017,informed the court that they had been unable to respond to the preliminary objections of both the 1st and 2nd defendants. The 1st defendant Counsel however was in attendance on all four adjournment. The case was adjourned to 31st January 2017 for adoption of written addresses. On the 31st of January 2017 the 1st defendant adopted his written address and adumbrated his position. During adumbration Counsel to the 1st defendant argued that the 1st defendants were Public Officers under Section 18 of the Interpretation Act urging the court that as the claimant’s cause of action accrued in 2013 and this suit was instituted in 2015 urging the court to hold that the suit is statute barred and strike out the action for want of jurisdiction. The court with reliance on Order 45 rule 7 duly adopted the processes of the 2nd defendant and the matter was adjourned for the court’s ruling. Court’s Decision Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. The issues for determination in this suit to my mind are whether there are any merit to the defendant’s applications. The 1st defendants raised the objection that the claimant suit is Statute barred, while the 1st defendant also objected that his copy of the claimants originating processes were not signed and sealed as required by the Legal Practitioners Rules of Professional Conduct 2011, and that the said processes did not include a list of witnesses as is required by Order 3 rule 4 of the 2007 Rules of this court. The 2nd defendants on their part raised the objections to the claimants processes not being sealed by the franking counsel and the non-juristic persona of the 1st defendant. Now as regards the objection statute barred the position of the law has been well stated in a plethora of authorities with regards to 2(a) of the Public Officers Protection Act 2004; The statute in question is section 2(a) of the Public Officers Protection Act 2004, which 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: Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison. To whom does the POPA apply or is the Public Officer Protection act applicable to this suit. The word Public Officer has been defined in section 7(1) of the Public Officers (Special provision) LFN2004 (formerly Act No. 10 of 1976) to mean;- “ any person who holds or has held office in (b) the public service of a state or federal government… (c) the service of a body whether corporate or unincorporated established under a Federal or State Law. Section 318(1) of the CFRN 1999 defines “Public service of the Federation to mean service in any capacity in respect of the Government of the Federation and includes service as (c) any member or staff of any commission or authority established for the Federation by this constitution or by an Act of the National Assembly.†In FGN Vs ZEBRA [2002] LPELR 3172 SC. The Supreme Court held that a public officer as stipulated in Section 2A Public Officers Protection Act not only refers to natural persons sued in their personal names but they extend to public bodies, artificial persons, institutions or persons sued by their official names or titles PER MOHAMMED JSC. Also see the cases of ALHAJI ALIYU IBRAHIM Vs. JSC KADUNA & ANOR [1998]14 NWLR (Pt.583) p.1 and SULGRAVE HOLDINGS INC.&19 ORS Vs. FGN & 3ORS[2012]17 NWLR (Pt.1329) p.309 at 338. From the foregoing therefore, I find that the defendant is entitled to raised the statutory defence of 2(a) of the Public Officers Protection Act 2004, the next question to be determined is whether the circumstance before the court are such in which this law would have any bearing. The position of the law in the determination of whether a matter is statute barred or not; was restated in the case of KANU v. ENUGU BROADCASTING SERVICE & ORS. (2014) 46 NLLR (PT. 148) 243: Where this court held that “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 gives 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. Relying on the case of ELABANJO v. DAWODU (2006) 6 – 7 SC 24. Also in AGBOROH v. WAEC (2014) 43 NLLR (PT. 134) 31 NIC @ 34: It was held that the determination of whether a suit is statute barred or not involves the determination of the date on which the cause of action arose and comparing same with the date on which the suit was filed. If the date on which the suit was filed shows that the claimant came outside the period within which he should have come to court, the suit will said to be statute barred. This comparison can be done without taking oral evidence from witnesses. And in the case of GRAINS PROD. AGENCY V. EZEGBULAM (1999) 1 NWLR (PT. 587) 401: it was held that “in order to determine the period of limitation, one has to look at the writ of summons and the statement of claim and compare the averment on the statement of claim as to the date the wrong was committed with the date the writ of summons was filed. If the period between those two event two events is longer than the period prescribed by the relevant law as the period of limitation, the action is statute-barred. In the circumstances of this case the claimant grouse from the reliefs sought listed hereunder; The sum of N4, 271,400.00 being money had and received from laptops deductions made by the Defendants from 189 teachers/Claimants for the month of June, July, August and September 2013 at the rate of N5, 650 per month from each Claimant. 2. The sum of N114, 912 being 27 additional laptops deductions for 1 month - at N608 x 189 = N114, 912 Total = N4, 271,400 + N114, 912 = N4, 386,312.00 3. 10% court rate interest from the date of judgment until the judgment debt is finally liquidated. And from their pleadings at paragraphs That their cause of action is the deductions of various sums of monies from their salaries And contrary to their expectation the non supply of computers. The deductions were made over the months of June, July, August and September 2013, seeing as the last of the deduction as made in September 2013 the cause of action I find arose in September 2013, from the court’s file I find that this action was commenced on 11th November, 2015, which by simple mathematical calculations means that this action was commenced on 11th November, 2015- September 2014 = at least two (2) years and One(1) month after the cause of action arose. The public officer’s protection act gives a three month window for this action to be brought against the 1st defendant, which means that this action commenced on 11th November, 2015 was commenced (September 2013 + 3 months = December 2013 ( 11th November, 2015-December 2013 = )) One (1) year, Ten (10) months (at least) after the cause of action accrued. Where an action is instituted against a public officer outside the prescribed there months window of opportunity for bringing such action, the effect is that the said section has removed the right of action, the right of enforcement, the right of judicial relief against the respondent becomes unenforceable. See the case of EDMUND v. NIGEIAN CUSTOMS SERVICE BOARD (2014) 48 NLLR (PT. 157) 401 NIC @ 407. Also in EBETALEYE v. MAINSTREET BANK LTD. & ORS. (2014) 44 NLLR (PT. 141) 596 NIC this court held that “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 Law has elapsed. EGBE v. ADEFARASIN (1987) 1 NWLR (PT. 47) 1 @ 20. Having found that this matter is caught up by the limitation law the next thing to do is determine whether the matter fails within any of the prescribed exceptions and seeing as the cause of action is a determinate deduction to find that the question of continuing injury cannot apply. With regard to exception the defendant acting outside the colour of his office, in the circumstances and considering the pronouncement of the Court of Appeal in RAHAMANIYYA UNITED (NIG.) LTD. v. MINISTRY FOR FEDERAL CAPITAL TERRITORY & ORS. (2009) 43 WRN 124 CA @ 146; CHIGBU v. TONIMAS (NIG.) LTD. (2006) 31 WRN 179; (2006) 9 NWLR (PT. 986) 189 @ 210; That if an action against a public officer or public institution or organization is statute barred having not been brought within the prescribed period of three months, there will be no basis for investigating the conduct of the public officer which gave rise to the action’. I find and hold that this matter does not fall within the prescribed exceptions and is accordingly statue barred against the 1st defendant being a public officer. Now with regard to he 1st defendants other objections, the objection as to stamp and seal has been decided time without number to be a voidable situation which can be remedied by the claimant in this case affixing the said stamp and seal to the processes of the court and other parties, or presenting his receipt representing payment for the NBA stamp see CAR LTD. Vs. LASACO PLC & ANOR [2016 ] LPELR 41260 CA see also the cases of this court ALL PROGRESSIVE CONGRESS (APC) V. GENERAL BELLO SARKIN YAKI (UNREP) delivered on October 27, 2015 in Appeal No: SC/722/15 and this court’s NICN/UY/04/2015 INCORPORATED TRUSTEES OF THE ASSOCIATION FOR THE WELFARE OF RETIRED LOCAL GOVERNMENT STAFF, AKWA IBOM STATE. Vs. HON. COMMISSIONER FOR LOCAL GOVERNMENT & 3 Ors Vs. delivered on 16th February 2016 and NICN/AK/22/2015 CHIBUZOR ONYE-NSO Vs. FIRST MAXIMUM POINT INDUSTRIES LIMITED delivered on the 9th February 2016, this objection I find is a voidable one that could be remedied with the court’s direction, And as regard the objection as to the non-inclusion of a list of witness(es), the rules of this court in Order 5 (1) provide that the non-compliance with the rules such as Order 3(1) are to be treaty as irregularities and do not vitiate the claimants case. All that having been said however in the instant case having determined that the claimants case is statute barred against the 1st defendant to begin to order that perfection of a voidable process or deem the non filing of a list of witness(es) as an irregularity would amount to a non de plume and would have no effect whatsoever considering the status of this matter against the 1st defendant. Now to the objections of the 2nd defendant; with regard to the No. 1 That the claimants processes did not comply with Order 3 rule 1, as I had already determined the point that non compliance with the rules of this court could be considered irregularities, it is not necessary to reproduce the courts position, with regards to objection No. 2, That the complaint was not sealed by the franking legal practitioner, also has been resolved above leaves only the objection No. 3; That the 1st defendants Is not a juristic body, it is necessary to note that in law that it is not permissible to uphold the right of a third party in order to sustain a claim, See UGORJI Vs. ONWU [1991] 3 NWLR (Pt. 178) 177. The legal status/ position of the 1st defendant, I find, has no bearing whatsoever on the case against the 2nd defendant and having already determined above that the 1st defendant is in fact a public officer and for purposes of this court is capable of maintaining this action, the 2nd defendants this third objection fails. The claimants case is dismissed against the 1st defendant. The defendants in their pleadings have stated that they are in fact in possession of the computers which they described as unclaimed and indicated their willingness to present same to the claimant. Would this not resolve the substance of this case in toto? The claimant case shall continue against the 2nd defendant as sole defendant. That is the court’s ruling and it is hereby entered. …………………………………… Honourable Justice E. N. Agbakoba Judge.