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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/452/2013 BETWEEN Mr. Jimoh Owonuro Alausa - Claimant AND 1. The Governing (Lagos State University) 2. Lagos State University - Defendants REPRESENTATION King Wilson for the Claimant. S.A. Akinyanmi for the Defendants. RULING On 21/8/13, the Claimant approached this Court for the following reliefs - 1. Declaration(s): (i) That a conviction and sentence of the Claimant by way of recommendation for his dismissal from service with the 2nd Defendant by the 1st Defendant on an allegation of a crime i.e. “… over two (2) missing cheques leveled against you” without either a prior conviction of the Claimant on the alleged crime by a court of competent jurisdiction or the Claimant’s self admission of guilt of committing the alleged crime, is flagrant violation and gross abuse of the Claimant’s Human Right as Guaranteed by Section 36(1) (2) (b) and (5) and contrary to the 2nd Defendant’s condition of service of September, 1996; (ii) That the ratification of the 1st Defendant/Respondent’s recommendation (which itself is a conviction and sentence of the Claimant/Applicant) by the 2nd Defendant/Respondent on an allegation of crime, without either a prior conviction of the Claimant in any manner whatsoever by a court of competent jurisdiction or Claimant’s self admission of the alleged crime is a flagrant violation of the Claimant’s Human Right as guaranteed by Section 36(1) (2) (b) and (5) and gross abuse of the combined effects of the whole Article 10 of the 2nd Defendant’s condition of service of September, 1996; (iii) That the combined effects of the 1st and 2nd Defendants’ conducts of purported dismissal of the Claimant is unlawful dismissal. 2. An Order compelling and/or directing the Defendants jointly and/or severally the Defendant (sic) compute the Claimant’s entitlement in accordance with the provision of the whole of Article 6 of Chapter 6 of the 2nd Defendant’s condition of service within 30 days effective from the day of service of this Honourable Court judgment on the Defendants. 3. The sum of N5,000,000.00 (Five Million Naira) as general damages and out of pocket expenses. ALTERNATIVELY (IN DEFAULT OF THE DEFENDANTS NON COMPLIANCE WITH RELIEFS NO. 2 AS SOUGHT WITHIN 30 DAY) THE SUM OF N20,000,000 (TWENTY MILLION NAIRA) AS DAMAGES. 4. 21% interest on whatever is adjudged as Claimant’s entitlement from the 1st day May, 2013 till judgment and same until final settlement of the judgment debt. The Claimant's General Form of Complaint was accompanied by Statement of Facts, List of Witness, Written Statement on Oath, List and Copies of Documents to be relied on at the trial of the suit. On 7/10/13, Defendants entered an appearance and filed their statement of defence dated 19/9/13 same day. Attached to the Statement of Defence are List of Witness to be called at trial, Witness written Statement on Oath, List and copies of Documents to be relied on at trial. Before the trial of this case commenced, learned Counsel for the Defendants brought a Notice of Preliminary Objection. It was dated 23/5/14 and filed same day. The objection was brought pursuant to Section 2(a) of the Public Officers Protection Act, Cap. P41, Laws of the Federation of Nigeria, 2004; Section 2(a), Public Officers Protection Law, Cap. P26, Laws of Lagos State, 2003, Order 11 Rule 1 (3), National Industrial Court Rules2007 as amended by the National Industrial Court of Nigeria Practice Direction, 2012 and the inherent jurisdiction of the Court. The applicant sought an order dismissing and/or striking out this suit herein i.e. suit No. NICN/LA/452/2013 in its entirety for want of jurisdiction; and for such further order or orders as this Honourable Court may deem fit to make in the circumstances of this case. The grounds for the objection are that the : i. Claimant was dismissed from the service of the 2nd Defendant with effect from 26th July 2010. ii. 2nd Defendant letter conveying the decision of the 1st Defendant on the dismissal of the Claimant was dated 30th April 2013. iii. Claimant filed this suit i.e. Suit No. NICN/LA/452/2013 on 21st August 2013 and iv. Suit of the Claimant i.e. NICN/LA/452/2013 is statute-barred having been filed outside the mandatory three months as provided for by the Public Officers’ Protection Act 2004 and the Public Officers' Protection Law of Lagos State 2003. The Notice of Preliminary Objection was supported by a 10-paragraph Affidavit in Support and a written address. In the written address learned Counsel raised a lone issue for determination as follows: ''Whether the suit of the claimant i.e Suit No. NICN/LA/452/2013 is not barred by the statute of limitation''. Arguing this issue, learned Counsel stated that a party to a proceeding who is of the view that the court in which he is summoned to defend himself lacks jurisdiction to entertain the action or matter should at the earliest opportunity after his discovery raise an objection to the jurisdiction of the Court. Counsel cited Western Steel Works Limited v. Iron & Steel Workers Union (1986)3 NWLR (Pt. 30) 617 and NDIC v. SBN Plc (2003)1 NWLR (Pt. 801) 311. Learned Counsel submitted that the action of the Claimant is statute-barred having been filed outside the statutory period of three months as provided by the Public Officers Protection Act Cap. P41, Laws of the Federation of Nigeria, 2004 and Public Officers Law Cap. P26, Laws of Lagos State , 2003. Counsel referred to paragraph 5of Applicants' supporting Affidavit affirming that Claimant was dismissed from service of the 2nd Defendant with effect from 26/7/13. Referring to Exh. LASU B, Counsel pointed out that the 2nd Defendant's letter conveying the decision of the 1st Defendant on the dismissal of the Claimant to the Claimant was dated 30/4/13. Counsel pointed out that the present suit was instituted on 21/8/13 about Three months and Twenty One days after the final decision on the dismissal of the Claimant was communicated to him by the 2nd Defendant. Relying on NPA Plc v. Lotus Plastics Limited (2005)19 NWLR (Pt. 959) 158 at 181, Counsel submitted the suit of the Claimant challenging the act of a public officer done in accordance with the powers of his office cannot be instituted after the expiration of three months from the date the act complained of was done. Further citing A.G. Federation v. Abacha (2010)17 NWLR (Pt. 1221)1, Counsel submitted that where the defence of limitation is raised under the Public Officers Protection Act, the Court is not to concern itself with the question as to whether the act was done wrongly or not but solely to consider whether the action is statute-barred or not. According to learned Counsel, the reason behind the limitation law is to give a time frame within which period an aggrieved plaintiff can commence an action; that where a claim is stale by effluxion of time, evidence is also stale and that limitation period is to guide against stale claim which becomes an inconvenience to the Defendant. Counsel urged the Court to resolve this lone issue in favour of the Defendants/Applicants and dismissed the suit as being statute-barred. In opposition to the Notice of Preliminary Objection, learned Counsel to the Claimant filed a 5-page written address. Counsel raised the following 3 issues for determination - 1. ls the Notice of Preliminary Objection an objection of this Honourable Court original jurisdiction or procedural jurisdiction? 2. If the objection is not original jurisdiction, when can such be made? 3. Such objection applies to the claimant's claims a one founded on contract of employment with spelt out conditions of service. Learned Counsel opted to argue issues1 and 2 together. In doing so, Counsel submitted that the Rules of this Court is not self exhaustive and hence Rule ''15 makes recourse to other Court rules'' and that where there is need to recourse to another court Rules, it is the Rule of the Federal High Court that is usually resorted to. Referring to Order 29 (4) of the Federal High Court Rule, 2009, Counsel submitted that a party objecting to jurisdiction of the Court to entertain a matter is enjoined to do so within 21 days upon service of necessary processes on him/her, otherwise he/she is bound to wait till the conclusion of the suit by virtue of Order 29(5) of the Court Rules. According to Counsel, the objection filed by the Applicants is belatedly and should be differed to the final address stage for whatever it is worth. Counsel submitted that there is a world of difference between want of original jurisdiction and procedural jurisdiction citing Kossen v. Savannah (1997)NWLR (Pt. 480) 479. He submitted that the objection raised by Defence Counsel is procedural and failing to raise it at the onset constitutes a waiver and cannot be entertained at this stage. Counsel urged the Court to dismiss the objection. On issue 3, learned Counsel submitted that statute of limitation does not apply to contractual relationship since parties to the contract are bound by the terms and conditions of their contract. Counsel referred to FGN v. Zembra Energy Limited (2002)18 NWLR (Pt. 798) 162 and NIC v. Aminu (2012)8 NWLR p.330. According to learned Counsel, the plank of the Claimant's claim is founded on breach of the condition of service of a contract of employment between the Claimant as an employee and the Defendants as employers; and that the manner of the claimant's unlawful dismissal was in breach of his fundamental rights as protected by the Constitution. Learned Counsel urged the Court to dismiss the preliminary objection as grossly misconceived, sheer time wasting and brought mala fide. I have read and reviewed the written submissions of both learned Counsel in this case. I have also in addition listened to the oral argument of Counsel in this case. The lone issue for determination here is whether the present suit is caught by the statute of limitation. A defence founded on statute of limitation is a defence that the claimant has no right of action. This defence can be traced in limine and without any evidence being led in support. For this defence to succeed, it is sufficient if prima facie, the date of taking the cause of action outside the prescribed period is disclosed in the writ of summons (the Complaint in this case) and the Statement of Claim (here the Statement of Facts). A pertinent question to ask is: when does time begin to run for the purpose of statute of limitation? Time is said to begin to run when there is in existence a person who can be sued and all facts have happened which are material to be proved to entitle the Claimant to succeed; and an action commenced outside the statutory period within which an action must be brought is not maintainable. See Hassan v. Aliyu & Ors (2010) LPELR-1357 (SC). Examining the Statement of Facts of the Claimant, paragraph 15 states thus- 'The Claimant avers that by a letter dated 30th of April, 2013, the Defendants communicated to the Claimant his dismissal from 2nd Defendant's employment on all ''allegation of abscondment from duty over two (2) missing cheques...'' which is contrary to the provision of paragraph 10 of its condition of services in particular, particle(sic) Article 10.14 of same'. Same was repeated in paragraph 15 of Claimant's written statement on oath dated 21/8/13. It is thus obvious that the cause of action of the Claimant arose on 30/4/13. That was the date on the letter communicating his dismissal from the second Defendant to him. Now section 2(a) of the Public Officers Protection Law, Cap.P26, Laws of Lagos State 2003 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 the available affidavit evidence before the court and the documents exhibited the fact remains that this case was not instituted within the time limit as provided by the statute. Cause of action arose on 30/4/13. This suit was instituted on 21/8/13. Claimant was late for about 21 days in coming to Court. This suit is no doubt caught by the statute of limitation - Public Officers Protection Law of Lagos State in this case. In situation as this where Claimant fails to approach the Court on time, the law is not saying the Claimant has no right. The law is simply saying that the alleged right of the Claimant cannot be enforced through the judicial process. See Hassan v. Aliyu & Ors (2010) LPELR-1357. I thus find and hold that the claim of the claimant is statute-barred not having been brought within the time allowed by the Public Officers Protection Law of Lagos State. Learned Counsel has submitted before that Defendant could not raise the objection so raised at the time it was raised. According to him Counsel for the Defendant had taken steps in the proceedings. Counsel had also sought to draw a distinction between objection to original jurisdiction of court to entertain a matter and procedural jurisdiction. I must point out that the argument canvassed is misconceived. issue of jurisdiction is a fundamental one which goes to the very root of a case. The position of the apex Court as to when same can be raised has not changed; and it is that it can be raised at any stage of the proceedings in the court of first instance or even in the Supreme Court. The issue can be raised by any of the parties or by the court itself suo motu; and when there are sufficient facts ex-facie on the record establishing a want of competence or jurisdiction in the court it is the duty of the Judge or Justices to raise the issue suo motu if the parties fail to draw the attention of the court to it. See Olutola v. Unilorin (2004) LPELR-2632 (SC), Adetona v. Igele General Enterprises Limited (2011) LPELR-159. That is the position of the law on issue of jurisdiction. The position has not been changed or reviewed by the apex and no distinction has been made as to when issue of jurisdiction can be raised. Finally, and for the avoidance of doubt, the preliminary objection brought by the Defendants succeed. The case of the Claimant is therefore dismissed. I make no order as to cost. Ruling is entered accordingly. ____________________ Hon. Justice J.D. Peters Presiding Judge