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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: September 30, 2014 SUIT NO: NICN/LA/436/2013 BETWEEN MR. AUGUSTINE UMEADI & 6 OTHERS - Claimants AND A. G. OF THE FEDERATION & ANOTHER - Defendants REPRESENTATION C. K. Nmarkwe, Esq. for the Claimants. N. C. Nkem (Mrs.) for the Defendant. RULING On 11/10/13, the Claimants in this case approached the Court for the following reliefs; a. A declaration that as Legal Sitting Tenants and Occupiers of the Federal Government Residential Facility known as Customs Quarters situate at 511 Road, A Close, Federal Housing Estate (Gowon Estate), Ipaja, Lagos State, the Claimants have a right of first refusal and are entitled to purchase and/or lease of the said Customs Quarters from the 2nd Defendant. b. A Declaration that having expressed an interest in the purchase or lease of the said Customs Quarters by the purchase and completion of Application Forms; payment of Bidding Fee of =N=10,000.00 each and participation in verification exercise, the Claimants are entitled to bid for the purchase or lease of the said Customs Quarters. c. A Declaration that the rights and benefits conferred on the Claimants by Statute and/or the Policy of the Federal Government of Nigeria cannot be withdrawn by the 2nd Defendant's pronouncement or letter dated 25th February, 2013. d. An Order of the Honourable Court directing and/or compelling the 2nd Defendant to continue with and exhaust the processes and procedures of effecting a sale and/or lease of the said Customs Quarters to the Claimants e. An Order of Injunction restraining the Defendants either by themselves, their Servant, Agent, Privies or by whomsoever from effecting a sale, lease, mortgage of the said Customs Quarters to any person other than the Claimants. f. An Order of Injunction restraining the Defendants either by themselves, their Servants, Agent, Privies or by whomsoever from evicting the Claimants from the said Customs Quarters or interfering with their possession of same in any manner whatsoever until the completion of the processes and procedures of sale or lease of the said Customs Quarters to the Claimants. The Form 1 was accompanied by Statement of Facts, List of Witness, Witness Statement on Oath, List and Copies of Documents to be relied upon at trial. On 20/12/13, 1st Defendant brought a Notice of Preliminary Objection pursuant to Section 7, National Industrial Court Act, 2006, Section 2, Public Officers Protection Act, Laws of the Federation of Nigeria, 2004 and under the inherent jurisdiction of the Court. In it, 1st Defendant sought, among others, an order of court stating that this suit is incompetent, that the Court lacks jurisdiction to entertain the suit and an order of Court dismissing the suit. The preliminary objection was predicated on the following grounds, that: 1. the action is statute-barred having been commenced by the Claimants outside the statutory period of three (3) months by virtue of Section 2(a) of the Public Officers Protection Act, Laws of the Federation of Nigeria, 2004; 2. the plaintiffs lack locus standi to institute this action; 3. the action is not justiciable; 4. the action discloses no reasonable cause of action; 5. the action was commenced in a wrong court in that this Honourable Court lacks jurisdiction to entertain Land/Property matter; 6. this suit being speculative, unmeritorious and incompetent, it should be dismissed by this Honourable Court. The Notice of Preliminary Objection was supported by a 9-paragraph Affidavit and written address. In his written address, learned Counsel for the Applicant set down 3 issues for determination as follows: 1. Whether this Honourable Court has the jurisdiction to entertain this matter in view of the provisions of Section 2(a) of the Public Officers Protection Act Cap. P41, Laws of the Federation of Nigeria, 2004. 2. Whether the Complaint and Statement of Facts disclose any reasonable cause of action against the Defendants. 3. Whether this Hobourable Court has the jurisdiction to entertain and determine the complaint of the Claimants. On issue 1, learned Counsel submitted, referring to Ibrahim v. Judicial Service Commission, Kaduna State (1998)14 NWLR (Pt. 584) 1 which defines the phrase Public Officer as being used synonymously with public office, public bodies or institutions which includes every officer or department vested with performing duties of public nature, that the Defendants are public officer within the meaning of Public Officers Protection Act; that by Section 2(a) of the Public Officers Protection Act, action must be commenced against a public officer within 3 months of the accrual of cause of action and that failure to so commence an action before the expiration of the stipulated time limit oust the jurisdiction of the Court and leaves the Claimant with an empty unenforceable cause of action. Counsel referred to William Olagunju & Anor. v. Power Holding Compny of Nigeria Plc (2011)4 SCNJ 192 at 202. Learned Counsel submitted that Claimants filed their complaint on 11/10/13 while the cause of action arose on 25/2/12, a period of twenty months interval. Counsel submitted that not having instituted this action within the three months allowed by statute, the action is statute barred and the Court is denied jurisdiction to hear and determine same. Counsel referred to Goodwill Co Ltd v. Calabar Cement Co. Ltd (2010)16 WRN 108 at 144. On issue 2, Counsel submitted that Claimants suit is speculative and disclosed no reasonable cause of action. According to learned Counsel, from paragraphs 5, 6, 7 and 17 of the Statement of Facts Claimants relied on the Federal Government Policy and approval of sale of Government Residential Facilities s the foundation of their claims but that paragraph 16(iv) Approved Guidelines Published in the Federal Republic of Nigeria Official Gazette, the property in question was excluded from the sale progarmmes of the government. Counsel urged the Court to hold that no reasonable cause of action is disclosed by the Claimant. In relation to issue 3, it was the submission of learned Counsel that Section 254C(1), Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010 and Section 7, National Industrial Court of Nigeria Act, 2006 confer jurisdiction on the Court but that the jurisdiction so conferred does not extend to cases of Land and Sale/Lease of properties. learned Counsel submitted that issue of jurisdiction is very fundamental and that in determining jurisdiction of Court, it is the claim before the Court that has to be looked at or examined to ascertain whether or not it comes within the jurisdiction conferred on the Court. Counsel cited A.G. Benue State v. Umar (2008)1 NWLR (Pt. 1068) 322, Abdulhamid v. Akar (2006)26 NSCQR (Pt. 2) 1429 and Madukolu v. Nkemdilim (1962)2 SCNLR 341. Counsel urged the Court to hold that the Court does not have jurisdiction to hear and determine this case. Learned Counsel for the Claimants filed a 7-paragraph Counter Affidavit dated and filed 4/4/14 and a 7-page written address also dated 4/4/14. In his written address, learned Counsel identified four issues for determination. They are as follows - 1. Whether this Honourable Court is clothed with jurisdiction to hear and determine the issues raised in this suit. 2. Whether this suit is barred by statute and the Public Officers Protection Act, 2004, capable of insulating the Defendants from civil liability. 3. Whether this suit discloses a reasonable cause of action against the Defendants; and 4. Whether the equitable doctrine of estoppel can operate to estop the Defendants from reneging on their representations. On issue 1, Counsel submitted that Courts are creatures of the stautes which statutes also confer power on the Courts, citing Gov. of Kwara State v. Gafar (1997)7 NWLR (Pt. 511) 51; that whether or not a Court has jurisdiction is determined by the claim before the Court and the statute establishing the Court, relying on Tukur v. Government of Gongola (1989)4 NWLR (Pt.177). Counsel submitted that by the combined reading of Sections 254C (i)-(k) and Section 254D (i) of the Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010,this Court has jurisdiction to hear and determine this case. Counsel urged the Court to so hold. Respecting issue 2, learned Counsel submitted that Public Officers Protection Act does not avail a public officer who acts outside his lawful duties, citing Ekemode v. Alausa (1961)1 All NLR 135; involves in excesses and carrying out unlawful orders, relying on Iyere v. Duru (1986)5 NWLR (Pt. 44) 655; involved in criminality and fraud, relying on Yabugbe v. C.O.P (1992)4 NWLR (Pt. 234) 152; act mala fide and unreasonably; involved in constitutional matters and cases involving Fatal Accident Act; and cases involving contracts, recovery of Land and claims for work done citing Dyson v. A.G (1991) KB 410, Igbe v. Gov. Bendel (1981)1 NCLR 183, Votenisky Nigeria Limited v. Military Gov. of Benue & Anor. (1976)1 NMLR 8 and Chigbo v. IGP (1973)3 UILR 431. It was the submission of Counsel that this suit relates to enforcement of contractual right and hence not barred by the Public Officers Protection Act. Counsel urged the Court to so hold. With regards to issue 3, Counsel submitted that a reasonable cause of action means the fact or facts which give rise to a right of action; that the facts as pleaded in the Statement of Facts are clear on the justiciable and enforceable claims of the Claimant and that the Court is justified in exercising its jurisdiction and judicial powers as enshrined in Section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. He urged the Court to so hold. On issue 4, learned Counsel referred to Section 169, Evidence Act, 2011 and submitted that the Defendants, by their acts and declarations, caused the Claimants to believe that the sale of Customs Quarters is true; that Claimants acted on the said representations and furnished consideration and that Defendants should be estopped from withdrawing from the transaction or claiming that the transaction is non-justiciable. Counsel urged the Court to so hold. By a letter dated 27/5/14 and received 30/5/14/ and titled Submission of Additional Authorities, learned Counsel for the Claimant submitted the case of Central Bank of Nigeria v. Mr. Olasupo Adedeji (2005)26 WRN 38, 46-47. The Court of Appeal per Muhammad J.C.A held in that case that section 2 of the Public Officers Protection Act does not apply in cases of recovery of land, breaches of contract, claims for work and labour done. This Judgment was adjourned for delivery on 31/7/14. Unfortunately, the Judiciary Staff Union of Nigeria (JUSUN) embarked on industrial action which lasted from 18/7/14 to 4/8/14. Hence, this Judgment, though ready to be delivered on 31/7/14 could not be for the reason as stated. Thus it was adjourned till today for delivery. I have read all the processes filed by learned Counsel on either side respecting this Notice of Preliminary Objection. I have in addition listened to the oral arguments as advanced by learned Counsel. Considering the diverse issues raised for determination by either side, i narrow these issues down mainly to one thus- Whether the Court has the jurisdiction to hear and determine this case The determination of this issue goes to the root of this case. The law is trite that issue of jurisdiction can be raised at any stage of the proceedings. Once it is raised, it is imperative that it be sorted out before further progress is made in the case. The rational being that no matter how well intentioned a Judge may be a matter decided without jurisdiction is an exercise in futility, see PetroJesicca Enterprises Limited & Anor. v. Leventis Technical Company Limited (1992) LPELR-2915 (SC). In determining whether or not a case is barred by the statute, the Statement of Facts is the appropriate document for the Court to examine. In doing so, a trial Court is expected to examine the date of accrual of cause of action vis-a-vis the date of commencement of action and the provisions of the relevant statute. Paragraph 16 of the Claimants Statement of Facts states thus- ''In a surprising twist of events and in response to the Claimants' Solicitors letter, the 2nd Defendant by letter dated 25th of February 2012, informed the Claimants (through their Solicitors) that it ''has rescinded its decision on the Lease of the Residential Quarters being occupied and used as Barracks of the Nigeria Customs Service''. Paragraph 17 of the Claimants' Witness Statement on Oath contains the same averments as the above. There is no doubt that the basis of the claim of the Claimants against the Defendants is the employment relationship between them. The alleged right of the Claimants to bring this action in the first place was the fact that they were employees of the Defendants or at least of an Agency of the Federal Government - Nigeria Customs Service. Indeed, Claimants brought this fact to fore when they stated in paragraph 4 of their Statement of Facts that- ''The Claimants say that the said Customs Quarters comprises of 182 Flats and 10 Bungalows and were allotted to the Claimants at various times and in the course of their employment as Civil Servants with the Nigeria Customs Service''. The Paragraph 6 of the same pleadings- ''The Claimants plead that in year 2004 and in the course of their employment with the Nigerian Customs Service, the Federal Government of Nigeria came up with a Policy and approved the sale of its Residential Facilities to Legal Sitting Tenants in occupation of such Facilities''. No Court exercises its jurisdiction in isolation or outside the statute establishing it. The National Industrial Court of Nigeria probably has the least jurisdiction of all the Courts in this country. The Court is a one-jurisdiction Court as conferred by the statute setting it up and the Constitution, see Section 254C, Constitution of the Federal Republic of Nigeria, 1999 (Third Alteration) Act, 2010. The power of the National Industrial of Nigeria to hear this case is predicated on the employer/employee relationship existing between them. The fact also remains that the phrase ''benefits and any other entitlement of any employee, ....'' in Section 254C (k) must be read and construed within the context of labour rights. That being the case, whatever statutory provisions which will ordinarily affect institution of causes and matters for the enforcement of any labour rights will certainly affect this case also. The 1st Defendant in this case has argued that the case of the Claimant is barred by the Public Officers Protection Act. Now section 2(a) of the Public Officers Protection Act, Cap. P41, 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). From paragraph 16 of the Statement of Facts and paragraph 17 of the Claimant's witness written statement on oath it is apparent that Claimants' cause of action arose by the 2nd Defendants letter dated 25/2/12 written to the Claimants through their Solicitors that it has rescinded its decision on the Lease of the Residential Quarters being occupied and used as Barracks of the Nigeria Customs Service. This suit was filed on 12/8/13 - a period of over one year since the accrual of the cause of action of the Claimants. I find and hold that this case was instituted outside the mandatory three months allowed by the Public Officers Protection Act. I think the state of the legal development on the point under consideration has moved beyond the position of the learned Counsel for the Claimant that limitation law does not apply to contracts of employment. For, in several decisions, among which is Bakare v. Nigerian Railway Corporation (2007)LPELR-712, the apex Court has held that indeed statute of limitation applies to contract of employment. A consequence of failure to commence an action within the time allowed by the statute is that it becomes incompetent and the Court stripped of jurisdiction to hear and determine same, see Madukolu v. Nkemdilim (1962)2 SCNLR 341, Bakare v. Nigerian Railway Corporation (Supra). Finally, l find and hold that the suit of the Claimants having been commenced outside the time allowed by the Public Officers Protection Act, the rights sought to be enforced are extinguished and the jurisdiction of the Court to adjudicate over same is denied. Defendants' preliminary objection is sustained and Claimants' case dismissed. I make no order as to cost. Ruling is entered accordingly. ___________________ Hon. Justice J. D. Peters Presiding Judge