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REPRESENTATION H. E. CHUKWU of the claimant E. A. EYO for the defendant JUDGEMENT The Claimants instituted this action via a Complaint with the accompanying frontloaded documents filed on 31st December, 2015 against the defendants for the following reliefs: A. SPEICAL DAMAGES The sum of Four Million, Four Hundred and Forty-Seven Thousand, Three Hundred and Eighty-Two Naira (#4,447, 382.00) only being the summation of the salaries owed to the claimants at Eighty-One Thousand, Five Hundred and Sixty-Six Naira (#81,566.00) only, and Seventy-One Thousand, Seven Hundred and Ninety-Two Naira (#71,792.00) only respectively for 29 months by the defendants. Payment of the sum of #153,358.00 (One Hundred and Fifty Three Thousand, Three Hundred and Fifty-Eight Naira) only i.e. (#81,566.00 + #71,792.00) per month being joint monthly salaries of claimants until determination of the case. Interest on the above sums at the rate of 21% from August, 2013 till December, 2015 and until the determination of this case. #1,000,000.00 (One Million naira) only being cost of litigation. B. GENERAL DAMAGES One Hundred and Fifty Million Naira (#150,000,000.00) only for the deprivation, emotional stress, psychological trauma, loss of dignity of person and financial crises caused the claimants by the defendants. The Defendants raised a NOTICE OF PRELIMINARY OBJECTION dated and filed on 1st June, 2016, to the jurisdiction of the Honorable Court to entertain/hear this matter. GROUNDS FOR THE OBJECTION The National Industrial Court lacks jurisdiction to entertain the subject matter of this suit being statute barred in view of Sec. 1 (a) of the Public Officers Protection Law Cap. P.17, Laws of Cross River State, 2004 as amended by Law No. 1 of 2007 and Sec. 16 of Limitation Law Cap. L14 Laws of Cross River State, 2004. The suit has been commenced contrary to the provisions of Sec. 1 (a) of the Public Officers Protection Law Cap. P.17, Laws of Cross River State, 2004 as amended by Law No. 1 of 2007 and Sec. 16 of Limitation Law Cap. L14 Laws of Cross River State, 2004. RELIEFS SOUGHT AN ORDER striking out this suit for lack of jurisdiction as being statute barred contrary to Sec. 1 (a) of the Public Officers Protection Law Cap. P.17. The defendants also filed a WRITTEN ADDRESS IN SUPPORT OF PRELIMINARY OBJECTION with the sole ISSUE Whether the National Industrial Court has jurisdiction to entertain the subject matter of this suit being statute barred in view of Sec. 1 (a) of the Public Officers Protection Law Cap. P.17, Laws of Cross River State, 2004 as amended by Law No. 1 of 2007 and Sec. 16 of Limitation Law Cap. L14 Laws of Cross River State, 2004. Learned Counsel E. A. Eyo Esq. submitted that a cause of action is said to be statute barred if in respect of it, the proceedings cannot be brought because the period laid down by the Limitation Law or Act had elapsed and that in determining the period of limitation, the Writ of Summons and Statement of Facts alleging when the wrong was committed which gave the claimant a cause of action is looked at and compared with the date which the Writ of Summons was filed. And this can be done without taking oral evidence from witnesses, that if the time on the Writ is beyond the period allowed by the Limitation Act or Law, then the action is statute barred. F.R.I.N. v. GOLD (2007) 11 NWLR (PT. 1044) 1 H. 1. Counsel in answering the question: “How could one determine whether the claimant’s action is statute barred?†referred the Court to the case of AMATA v. OMOFUMA (1997) 2 NWLR (PT. 485) 93 @ 92 HELD 3; AMUSAN v. OBIDEYI (2005) LPELR-SC.170/2000, per Kutigi, JSC (Pp. 5-6, PARAS. F-A). The CLAIMANTS’/RESPONDENTS ’filed their WRITTEN ADDRESS ON REPLY TO PRELIMINARY OBJECTION on 25th July, 2016. Wherein they raised one ISSUE Whether the National Industrial Court has jurisdiction to entertain the subject matter of this suit being statute barred in view of Sec. 1 (a) of the Public Officers Protection Law Cap. P.17, Laws of Cross River State, 2004 as amended by Law No. 1 of 2007 and Sec. 16 of Limitation Law Cap. L14 Laws of Cross River State, 2004. Learned Counsel to the claimant H. E. Chukwu Esq. submitted that Sec. 1(a) of the Public Protection Law cited by the defence counsel leans in their favour and that time begins to run from when there is a person who can sue and another who can be sued and all facts have happened which are material to be proved to ensure the claimant’s success. UBA v. BTL INDUSTRIES LTD. Z COMM. AC, 384. He submitted that it would be deduced from paragraph 25 of the claimants/applicants’ Statement of Facts that the right of action arose when they were thrown out in October, 2015 by the defendants/applicants from their work place with security guards. It therefore follows that the claimant/respondents’ action is not statute barred. AROWOLO v. IFABEYI (2002) 4 NWLR (PT. 757) 356; AMATA v. OMOFUMA (1997) 2 NWLR (PT. 485) 93 @ 92 HELD 3; EGBE v. ADEFARASIN (1987) 1 SCNJ; OWONIBOYS TECH. SERVICES v. UBN LTD. (2003) 15 NWLR (PT. 844) 545; (2003) 7 SC. 165. Counsel contended that the issue of the claimants’ appointment letters is that of “Res Ipsa Loquitur†as the letters speak for themselves in that the appointment letters expressly stated without contradictions that they were NOT “provisional†appointment letters as claimed by the defendants. That if they were intended to be provisional, they would have explicitly stated so on their surfaces. More so, that parties are bound by the agreement they enter into. UBN v. SOARES (2012) 11 NWLR (PT. 1312) 550 C.A.; ISHENO v. JULIUS BERGER NIG. PLC. (2008) 6 NWLR (PT. 1084) 582 SC. Moreover, that claimant’s’ employment is still subsisting till date as their employment is one with statutory flavour and the defendant has NOT till date sacked, terminated or dismissed them. That the same way the claimants were issued employment letters, they ought also to heave been issued with either sack, dismissal or termination letters equally and since the reverse is the case, they are still in employment. GOVERNOR OF KWARA STATE v. OJIBARA (2007) ALL FWLR (PT. 348) 864. Counsel argued further that the removal of the claimants is ultra vires. MDOAME v. WAEC (1992) 9 NWLR (PT. 265) 303; F.M.C. EDO EKITI v. ALABI (2012) 2 NWLR (PT. 1285) 4 11 E.R. It is counsel’s submission that the Court has a duty to determine where an employer dismisses or terminates his employee whether due process was followed having regards to the terms of the contract of employment and that and employer of an employee whose appointment has statutory flavour has no right to terminate his appointment at the pleasure of such employer. ALHASSAN v. A.B.U. ZARIA (2011) 11 NWLR (PT. N1259) 417, C.A.; ILOABACHIE v. PHILIPS (2002) 14 NWLR (PT. 787) 264; OLATUNBOSUN v. N.I.S.E.R. COUNCIL (1988) 3 NWLR (PT. 8023); BALOGUN v. UNIVERSITY OF ABUJA (2002) 13 NWLR (PT. 783) 421; IGWILO v. CBN (2000) 9 NWLR (PT. 672); BAMGBOYE v UNIVERSITY OF ILORIN. On 18th October 2016 parties adopted their written addresses and adumbrated their respective positions accordingly. COURT 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 issue for determination in this suit to my mind is whether there is any merit to the defendant’s application. Before I delve into the merit of this application, it is pertinent to note that at this stage the court is to determine in limine a jurisdictional question as to propriety or competence in regard to limitation laws and the role of court is strictly defined once the question is raised in a suit and what the court must do. In that wise all the submissions of the claimant as to the claimant’s’ employment is still subsisting, or that their employment is one with statutory flavour, determining the effect of the defendants action in terminating the claimant, the import of the claimant’s employment letters are all triable issues which this court would be required to determine and cannot be considered at this stage. And as such all submissions on these triable issues will be discountenanced for the purpose of this ruling. The defendants have submitted the claimants suit is statute barred and cite Sec. 1 (a) of the Public Officers Protection Law Cap. P.17, Laws of Cross River State, 2004 as amended by Law No. 1 of 2007 and Sec. 16 of Limitation Law Cap. L14 Laws of Cross River State, 2004. Without directing the court in their processes or during adumbration by way of argument what the claimants’ cause of action is and in what manner it has become susceptible to the above limitation laws. Section 1 (a) of the Public Officers Protection Law Cap. P.17, Laws of Cross River State, 2004 as amended by Law No. 1 of 2007 provides 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 Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Law, duty or authority, the following provision shall have effect. (a) the action, prosecution, or proceedings shall not lie or be instituted unless it is commenced within six months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within Six 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. While Section 16 Limitation Law Cap L 14 Laws of Cross Rivers State provides; No action founded on contract, tort or any other action not specifically provided for in Part 1 and 2 of this law shall be brought after the expiration of five years from the date on which the cause of action accrued. It is also the law that 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 State to mean (c) member of staff of any commission or authority established for he state by this constitution or by any law of a House of Assembly and (g) staff of any company or enterprise in which the government of the state has controlling shares or interest. 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. And also worth consideration is the fact that the only persons whom the provisions of the Public Officers Protection Act would not cover are persons who are independent contractors for the provision of services for a public services body or authority by virtue of contract. BUREAU OF PUBLIC ENTERPRESIES v. REINSURANCE ACQUISITION GROUP LTD. & ORS. (2008) LPELR-8560 (CA) From the foregoing, I find that the defendants are entitled to the protection afforded by the Public Officers Protection Act. The claimants has counter argued and correctly made submissions that with regard to limitation laws that time begins to run from when there is a person who can sue and another who can be sued and all facts have happened which are material to be proved to ensure the claimant’s success. UBA v. BTL INDUSTRIES LTD. Z COMM. Supra and that parties are bound by the agreement they enter into. UBN v. SOARES (supra). The claimant also submitted that their case was not statue that the right of action arose when they were thrown out in October, 2015 referencing paragraph 25 of their statement of fact. As mentioned above, the law is settled on what a court has to do when the question of jurisdiction a la POPA/Limitation is raised. 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 give 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. KANU v. ENUGU BROADCASTING SERVICE & ORS. (2014) 46 NLLR (PT. 148) 243 following ELABANJO v. DAWODU (2006) 6 – 7 SC 24. 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. EBETALEYE v. MAINSTREET BANK LTD. & ORS. (2014) 44 NLLR (PT. 141) 596 NIC. AGBOROH v. WAEC (2014) 43 NLLR (PT. 134) 31 NIC @ 34 As 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. The court is first to determine the cause of action of the claimant, and then to compare the date this cause of action arose with the date the suit was instituted ADEKOYA V. F.H.A. (2008) 11 (PT. 1099) 539 “A cause of action accrues the moment a wrong is done to the plaintiff by the defendant. And in respect of a contractual agreement, a cause of action accrues when there is a breach of the agreement, and not from the date the agreement was entered into by the parties. The court went on to hold that “In determining whether a cause of action is statute-barred or not, the most crucial consideration is when the cause of action arose.†In BAKARE V. NIGERIAN RAILWAY CORPORATION (2007) 17 NWLR (pt. 1064) 628, it was held that “The only place to look for the cause of action in a case is the statement of claim. Cause of action is made up of two factors, that is: The wrongful act of the defendants; And the consequential damage occasioned to the Plaintiff. Dantata V. Mohammed (2000) 7 NWLR (pt. 664) 176; Union Bank of Nig. Ltd. V. Penny-Mart Ltd. (1992) 5 NWLR (pt. 240) 228 referred to.] (p. 637, paras. E-F) The claimant’s reliefs are as follows SPEICAL DAMAGES The sum of Four Million, Four Hundred and Forty-Seven Thousand, Three Hundred and Eighty-Two Naira (#4,447, 382.00) only being the summation of the salaries owed to the claimants at Eighty-One Thousand, Five Hundred and Sixty-Six Naira (#81,566.00) only, and Seventy-One Thousand, Seven Hundred and Ninety-Two Naira (#71,792.00) only respectively for 29 months by the defendants. Payment of the sum of #153,358.00 (One Hundred and Fifty Three Thousand, Three Hundred and Fifty-Eight Naira) only i.e. (#81,566.00 + #71,792.00) per month being joint monthly salaries of claimants until determination of the case. Interest on the above sums at the rate of 21% from August, 2013 till December, 2015 and until the determination of this case. #1,000,000.00 (One Million naira) only being cost of litigation. B. GENERAL DAMAGES One Hundred and Fifty Million Naira (#150,000,000.00) only for the deprivation, emotional stress, psychological trauma, loss of dignity of person and financial crises caused the claimants by the defendants. The claimants cause of action from the above and paragraph 5, 6,8.9.10,13,17 and 21 is the non payment of their salaries. The position of the law is as was stated in LUTH & MB V. ADEWOLE [1998] 5 NWLR (PT. 550) 406, which held that where the claim is that payment of salaries has been wrongfully withheld, the cause of action accrues from the date the salaries are due for payment; and the liability of the employer does not generally depend on demand for payment. In the instant case, therefore, the cause of action even in relation to the unpaid salaries arose on August 2013 when the unpaid salaries first became due and payable. In WOHEREM J.P. VS. EMERUEWA & ORS (2004) 13 NWLR (PT.890) pg. 398. It was held that “A cause of action is statute-barred if proceedings cannot be commenced in court in respect of the same because the period laid down by the Limitation Act or Law has elapsed.†EDMUND v. NIGEIAN CUSTOMS SERVICE BOARD (2014) 48 NLLR (PT. 157) 401 NIC @ 407 A cause of action accrues on the date when a breach or any step taken would warrant a person who is adversely affected by the act of another to seek redress in court. OYETOKI v. NIGERIAN POSTAL SERVICE (2010) ALL FWLR (PT. 504) 1572. In the instant case, this suit was commenced on the 31st December, 2015 which by simple mathematics means this case was instituted 27 months after the cause of action inured. The effect of the limitation law, by Yare v. NSWIC, (2013) 5-7 MJSC (pt1) 1 is that any action that is statute-barred removes the right of action, the right of enforcement and the right to judicial relief. All of these have been recognized and applied by this Court in (amongst others) JOSHUA MNENGE V. NIGERIAN ARMY unreported Suit No. NICN/IB/22/2012, the ruling of which was delivered on December 18, 2012, Having satisfied that the instant case is caught up by the limitation laws the next step would be to ascertain whether the matter comes within any of the permitted exceptions to the limitation law that the injury in question is a continuing injury or that the public officer acted mala fide i.e. outside the colour of his office or employment or outside his statutory or constitutional duty. The claimants had raised the argument of continuing injury but consider the pronouncement in LUTH & MB V. ADEWOLE Supra and the fact that in continuing injury the position of the law was discussed in the case of NICN/CA/39/2012 HON. RUNYI KANU (JP) & 5 ORS VS. THE ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE CROSS RIVER STATE &19ORS delivered on 13th March 2013 where this court considered the recent case of AG, RIVERS STATE VS. AG, BAYELSA STATE & ANOR [2013] 3 NWLR (PT. 1340) 123 AT 144 – 150 and held, “the Supreme Court held that the case for the deprivation of allocation, which the plaintiff was entitled to every month and same has not ceased, was “a situation continuance of damage or injury which has not ceasedâ€; and so the defence of the Public Officers Protection Act would not avail the 1st defendant who had raised it. I understand this authority to lay down that where an allocation which comes periodically, say, monthly (like salary and allowances, which also come periodically) is deprived a plaintiff State (like salary and allowances deprived to an employee), then there is continuing damage or injury for which the Public Officers Protection Act or Law will not apply. In this sense, for the ‘continuing injury’ exception to apply, the employee would need to be in employment; for otherwise, the claim that the deprivation continues would not stand. In the instant case, the claimants ceased to be in office in 2010. There is, therefore, no question as to the existence of a deprivation of an entitlement which comes in periodically and has not ceased after 2010. This being the case, the claimant in the instant case cannot claim the benefit of the exception to the Public Officers Protection Law of Cross River State. In any event, the definition of the phrase “continuance of the injury†by case law authorities to mean continuance of the “act which caused the injury†and not the injury itself …†I find and hold that in this instant case the claimant cannot be availed of the exception of continuing injury as they are no longer in employment and therefore the question as to the existence of an entitlement which comes periodically and has not ceased after 2007 is untenableâ€. In the instant case, the claimants have never ever been paid the monthly salary so the issue of continuous of such is not tenable. Furthermore, the submission of the claimants as to the illegality or otherwise of the defendant in terminating the claimant cannot avail the claimants considering the position of the law as is found in the case of RAHAMANIYYA UNITED (NIG.) LTD VS. MINISTRY FOR FEDERAL CAPITAL TERRITORY & ORS (2009) 43 WRN 124 CA at page 146, applying CHIGBU VS. TONIMAS (NIG.) LTD [2006] 31 WRN 179; [2006] 9 NWLR (PT. 986) 189 SC AT 210, held that the propriety or otherwise of the act of the defendants is not a relevant consideration for the applicability of the Public Officers Protection Act. That the conduct of the defendants as to whether they were malicious or not is irrelevant in determining whether the cause of action is statute-barred under section 2 of the Public Officers Protection Act, referring to EGBE V ADEFARASIN [2002] 14 WRN 57 and AREMO II V. ADEKANYE [2004] 42 WRN 1 SC. On the whole, therefore, I find and hold that the instant case filed on 31st December 2015 but whose cause of action arose in August 2013 is statute-barred in a material aspect: in respect of the action being caught up by Section 1A of the Public Officers (Protection) Law Cap. P17, Vol. 5, Laws of Cross River State 2004, as amended by the Public Officers Protection (Amendment) Law No. 1 of 2007, the action coming outside of the six months limitation period allowed: The case of the claimants, therefore, lacks merit and is hereby dismissed for want of jurisdiction on the ground of the limitation law cited above. I make no order as to cost. Judgement is entered accordingly. …………………………………… Hon. Justice E. N. Agbakoba Judge