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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: NOVEMBER 18, 2014 SUIT NO. NICN/AB/04/2013 BETWEEN Dr Adegoke E. Adegbite - Claimant AND 1. Federal University of Agriculture Abeokuta 2. The Vice Chancellor (FUNAAB) 3. The Registrar (FUNAAB) 4. The Council (FUNAAB) - Defendants REPRESENTATION K. W. Bankole, for the claimant. F. A. O. Adekunle, for the defendants. RULING This is a transferred matter from the Federal High Court sitting at Abeokuta. The claimant had taken up a writ of summons against the defendant filed on 16th December 2009. By an amended writ of summons and amended statement of claim both dated 22nd November 2010 but endorsed by the Judge on 8th December 2010, the claimant prayed for – a) A declaration that the purported termination of the appointment of the plaintiff in the service of the 1st defendant vide a letter dated March 10, 2009 is wrongful, unlawful, without any justification, ultra vires and is therefore null and void. b) A declaration that the purported termination of the appointment of the plaintiff contravenes the rules of natural justice as well as section 17(1)(a), (b) and (c) of the Federal University of Agriculture Act (1992 No. 48) Cap. F22 Laws of the Federation of Nigeria 2004. c) A declaration that the plaintiff is still in the employment of the 4th defendant. d) A declaration that the Staff Disciplinary Committee was improperly constituted on the ground that there was no University Council in place as at the time disciplinary proceedings against the plaintiff was initiated. e) A declaration that the decisions of the Staff Disciplinary Committee that was upheld by the 4th defendant are null, void and of no effect. f) A declaration that the suspension letter dated 13th November 2008 and the letter terminating the appointment of the plaintiff on 10th March 2009 are null, void and of no effect. 1. An order setting aside all the decisions of the Investigative panel, Staff Disciplinary Committee and the University Council as it affects the plaintiff. 2. An order setting aside the letters of termination of appointment dated 10th March 2009 and suspension letter of 13th November 2008. 3. An order directing the defendants to immediately reinstate the plaintiff to his appointment as Senior Lecturer with the 1st defendant and also pay arrears of salaries and other allowances due to him for the period of March 2009 to the date judgment is delivered in this case. 4. And any other consequential order(s) justice of the matter may demand in the circumstance. 5. Cost in the sum of N20,000,000.00 for the action and unlawful termination of employment. The defendants reacted by filing its statement of defence, statement on oath of its witness, list of witness(es), list of documents/exhibits and copies of the documents. On 10th February 2014, the defendants filed a preliminary objection dated 7th February 2014 praying for an order dismissing this suit for no cause of action and want of jurisdiction. The ground of the objection is that the action is statute-barred under section 2(a) of the Public Officers (Protection) Act. In support of the objection was a written address. In the written address, the defendants framed three issues for the determination of the Court, namely – 1. Whether in the circumstances of this case, the claimant’s claim is statute-barred by the provision of section 2(a) of the Public Officers Protection Act. 2. If the first issue is resolved in the positive, whether the claimant has any cause of action. 3. Whether the Court has jurisdiction to hear the matter. Regarding issue 1, the defendants contended that from the reliefs claimed and paragraph 7 of the statement of claim of the claimant, what gave rise to the claimant’s claim is the termination of his appointment vide a letter dated 10th March 2009; and the claimant filed this action at the Federal High Court on 18th December 2009. This consequently means that the claimant filed this action outside of the three months limited by the Pubic Officers Protection Act. The defendant then cited Yare v. National Salaries, Wages and Income Commission (NSWIC) [2013] 5 – 7 MJSC (Pt. I) 1, where the appellant was retired on 9th December 1999 but waited until 30th March 2001 to sue. He was held to be caught up by section 2(a) of the Public Officers Protection Act as the case of action arose when the appellant was retired. On issue 2 i.e. whether the claimant has any cause of action, the defendants first defined what a cause of action is and then submitted that where a case is statute-barred as in the instant case, the claimant loses the right to enforce his cause of action, if any. The defendants then urged the Court to so hold. Regarding issue 3 i.e. whether the Court has jurisdiction to hear the matter, the defendants submitted that where the cause of action is defeated by delay in filing the action and it is no longer justiciable competent before the Court, jurisdiction must thereby be declined. In consequence, that the Court in the instant case should likewise decline jurisdiction and dismiss the case with substantial cost. The claimant reacted by filing an affidavit against the preliminary objection together with a written address. In the written address, the claimant framed three issues for the determination of the Court, namely – a) Whether the claimant’s case is statute-barred and whether the Public Officers Protection Act Cap. P41 LFN 2004 avails the defendants. b) Whether or not section 2(a) of the Public Officers Protection Act 2004 is intended by the Legislature to apply to specific contracts. c) Whether the cause of action in this suit arose on 23rd September 2009 and whether this Court has the power to determine same. On issue a), the claimant contended that time begins to run when there is in existence a person who can sue and another who can be sued, citing Fadare v. AG Oyo State [1982] 4 SC 1. That the Court should note that the Public Officers Protection Act is meant to protect public officers who have acted pursuant to the duties of their office from being harassed with State claims and proceedings, referring to Egbe v. Alhaji [1990] 1 NWLR (Pt. 128) 546 at 599. That the Public Officers Protection Act will not avail errant public officers who acted outside of the law. That since the claimant’s complaint is that the termination of his employment is illegal and wrong, the defendants cannot be said to have acted within the law, citing Ekeogu v. Aliri [1990] 1 NWLR (Pt. 126) 345 and Ag Rivers State v. AG Bayelsa State & anor [2013] 3 NWLR (Pt. 1340) 123. Regarding issue b), the claimant contended that the Public Officers Protection Act does not apply to specific contracts, referring to NPA v. Construzioni Generali FCS & anor [1974] 12 SC 81; [1974] NSCC 622 and EG Alapiki v. The Governor of Rivers State & ors [1991] 8 NWLR 593. In consequence, that the instant case being founded on a contract of employment, section 2(a) of the Public Officers Protection Act will not avail the defendants. On issue c), the claimant referred to Article 4.6 of the University of Agriculture Abeokuta Rules and Regulations as well as section 21(8) of the Federal University of Agriculture Act Cap. F22 LFN 2004, which provide that domestic remedies must be exhausted before any access to Court. That the claimant first applied to defendants to reconsider the said purported termination and so he could not have instituted this suit before making the said appeal; otherwise, he would be accused of filing a premature suit. It is the contention of the claimant, therefore, that his action is not statute-barred as argued by the defendants, his action having been filed within three months of the receipt of the letter dated 23rd September 2009 which finally terminated and dismissed the claimant from the employment of the defendants. The claimant then urged the Court to allow that suit to be heard on merit while dismissing the preliminary objection of the defendants. The defendants did not file any reply on points of law; but in orally adumbrating on their written address, they urged the Court to note and take account of the case of Kayode Adebisi v. Registrar, Federal University of Agriculture Abeokuta unreported Suit No. NICN/AB/03/2013 the ruling of which was delivered on 30th April 2004 where a plea of the case being statute-barred was upheld by this Court. I heard learned counsel and considered all the processes in this case. In considering the merit of the preliminary objection, I need to consider the propriety of the claimant filing an affidavit even when the defendant did not file one in raising the preliminary objection. In the first place, the affidavit, in simply reciting, arguing and submitting on laws (see, for instance, paragraphs 5 – 10, 12 – 16, 19, 22 and 24), the said affidavit went beyond the pale and offended section 115(2) of the Evidence Act 2011 by containing extraneous matters in the way of objections, prayers, legal arguments and conclusions. On this score, even if the claimant could file an affidavit at this stage, the affidavit he filed, being offensive to section 115(2) of the Evidence Act 2011 must be struck out; and I so find and hold. Even if the affidavit were not offensive to section 115(2) of the Evidence Act 2011, there is the issue of whether the claimant can file any affidavit for the purpose of the preliminary objection as filed. The authorities are clear that in determining whether an action is statute-barred, the period of limitation in any limitation statute is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave rise to the cause of action and by comparing that date with the date on which 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. See, for instance, Popoola Elabanjo v. Chief (Mrs.) Ganiat Dawodu [2006] 6 – 7 SC 24. The claimant’s affidavit seeking to explain away or bring into the fore facts that were not pleaded in the statement of claim cannot, therefore, be considered when determining whether this action is statute-barred. It was on this ground that Yare v. National Salaries, Wages and Income Commission (NSWIC) [2013] 5 – 7 MJSC (Pt. I) 1 denied the appellant use of an exhibit he filed to explain when the cause of action arose in the case. The facts as per the exhibit were not pleaded and so the Supreme Court held that those facts cannot be used to determine whether the action was statute-barred. In the instant case, therefore, the claimant’s affidavit against the preliminary objection of 12th May 2014, in like manner, cannot be used in determining whether the instant case is statute-barred; and I so hold. The claimant’s affidavit, however, sought to bring in as an exhibit the University of Agriculture Abeokuta Rules and Regulation for Senior Staff, March 1994. These Rules and Regulations for senior Staff, being statutory in nature, need no affidavit before being used in this case as they qualify to be judicially noticed by this Court. The issue for determination before the Court is whether the instant case is statute-barred. In making this determination, it is necessary to also determine in the process when the cause of action in the case arose. By Okenwa v. Military Governor of Imo State [1997] 6 NWLR (Pt. 507) 154 at 167, a cause of action accrues on the date on which the incident giving rise to the cause of action arose. A statute of limitation begins to run from the moment the cause of action arose. Thus, for the purpose of instituting an action in Court, time begins to run from the date the cause of action accrues. The case of Mrs. O. Adekoya v. Federal Housing Authority [2008] 4 SC 167 went on to state that a cause of action arises the moment a wrong is done to the plaintiff by the defendant; and the wrong which is the basis of a dispute represents a factual situation which entitles the plaintiff to seek a remedy in a court of law by way of enforcement. The effect of the limitation law, by Yare v. NSWIC, 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 this has been recognised 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, Mr. Friday Idugie v. Auchi Polytechnic, Auchi & ors [2013] 31 NLLR (Pt. 89) 242 NIC, Hon. Runyi Kanu (JP) & ors v. The Attorney-General & Commissioner for Justice Cross River State & ors [2013] 32 NLLR (Pt. 91) 63 NIC and 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 July 3, 2014. I agree with the defendants that in the instant case, from the reliefs claimed and paragraph 7 of the amended statement of claim of the claimant, what gave rise to the claimant’s claim is the termination of his appointment vide a letter dated 10th March 2009. The claimant filed this action at the Federal High Court on 16th December 2009; although the writ of summons is dated 18th December 2009, the endorsement by the Court registry is actually 16th December 2009. What this consequently means is that the claimant filed this action outside of the three months period allowed by the Pubic Officers Protection Act. On this score, the instant case is caught up by section 2(a) of the Public Officers Protection Act. The reaction of the claimant is that he is enjoined to exhaust domestic remedies as enjoined by Article 4.6 of the University of Agriculture Abeokuta Rules and Regulations and section 21(8) of the Federal University of Agriculture Act Cap. F22 LFN 2004. To be able to determine the veracity or otherwise of this submission of the claimant, it would be necessary to consider in greater details the case of Yare v. National Salaries, Wages and Income Commission [2013] 5 – 7 MJSC (Pt. I) 1 cited by the defendants. In that case, the appellant had appealed against his compulsory retirement. The compulsory retirement was vide a letter dated 9/12/1999. He appealed, and by a letter of 4/1/2001, the appeal was rejected. On a plea that the case is statute-barred, the appellant contended that his cause of action did not arise until 4/1/2001 when his appeal was turned down. The Supreme Court rejected this argument on the ground that the fact of an appeal against compulsory retirement was not pleaded in the statement of claim. It was raised much later in the course of proceedings and so that fact could not be considered when the issue of statute-barred became an issue. This is because only the statement of facts as originally filed can be considered, nothing else; and parties are bound by their pleadings. Since the issue of appeal against the compulsory retirement was not pleaded, it was accordingly raised as an afterthought. I enquired from counsel in open Court whether the law establishing the National Salaries, Wages and Income Commission (NSWIC) makes provision as to domestic remedies being exhausted before access to Court. I did not get any satisfactory answer. I accordingly looked through the case of Yare v. National Salaries, Wages and Income Commission to see if that issue was raised and addressed. What I deduce is that nowhere in that case can it be found where the Supreme Court alluded to the fact that the appeal that the appellant made was in compliance with a law requiring the exhaustion of domestic remedies. As I indicated earlier, it was the argument of the claimant that he is enjoined to exhaust domestic remedies under the enabling Act of the defendants. Since Yare v. National Salaries, Wages and Income Commission enjoined that the appellant needed to plead the fact that he appealed against his compulsory retirement for that to become an issue in the determination of when the cause of action arose, I searched through the amended statement of claim filed at the Federal High Court and found no such pleading. In paragraph 14 of the amended statement of claim, the claimant pleaded that there was no Council in place to have initiated disciplinary proceedings against him. This means that there was even no Council for the claimant to make any statutory appeal as may be enjoined by Article 4.6 (Right of Appeal) of the University of Agriculture Abeokuta Regulation, Guidelines and Conditions of Service of Staff and section 21(8) of the Federal University of Agriculture Act Cap. F22 LFN 2004. This also means that the pleading in paragraph 16 of the amended statement of claim which is that “in spite of his anguish and solicitor’s letter to the defendants to reconsider their position on this matter, they refused to even acknowledge the letter” cannot be a plea conforming to the statutory requirement of Article 4.6 (Right of Appeal) of the University of Agriculture Abeokuta Regulation, Guidelines and Conditions of Service of Staff and section 21(8) of the Federal University of Agriculture Act 2004. What all of this means is that the claimant in the instant case cannot rely on the fact that he first applied to the defendants to reconsider the said purported termination of his appointment as that application for reconsideration was not pleaded as being done pursuant to the statutory requirement of Article 4.6 (Right of Appeal) of the University of Agriculture Abeokuta Regulation, Guidelines and Conditions of Service of Staff and section 21(8) of the Federal University of Agriculture Act 2004. The argument that he could not have instituted this suit before making the said appeal in order not to be accused of filing a premature suit is accordingly an afterthought (note that paragraph 14 of the amended statement of claim states that there was no Council in place for the claimant to even appeal to) in the mould of the holding in Yare v. National Salaries, Wages and Income Commission given that no pleading as to the need to appeal against the decision taken against him was made in the statement of claim. The defendants had raised the alternative argument that even if the filing of this case at the Federal High was not statute-barred, the period of time from when the claimant’s case was transferred at the claimant’s instance from the Federal High Court (27th November 2012) to when he filed a fresh complaint in this Court (24th June 2013) was outside of the three months allowed by the Public Officers Protection Act; and so the Court ought to decline jurisdiction. This argument is uncalled for. For one, the directive to file fresh processes to accord with the Rules of this Court was the Court’s, not any of the parties’ – and certainly not the claimant’s. Secondly, as a transferred case, any talk of the case being statute-barred must be decided only on the processes filed at the Federal High Court since a transferred matter is not a fresh suit as the defendants seem to think. It is accordingly idle to give any further consideration to this bit of the defendants’ submission. The claimant had argued under issue a) that the defendants acted contrary to the confines of their public duties and have acted with no semblance of logical justification. In Joshua Mnenge v. Nigerian Army unreported Suit No. NICN/IB/22/2012, the ruling of which was delivered on December 18, 2012, this Court had held as follows – The argument of the claimant that the defendant did not lead evidence in proof of its objection is turning upside down the logic of principle. In a plea of a matter being caught up by the limitation law (the Public Officers Protection Act 2004 is a limitation law), all that is required of the applicant is to show from the originating processes when the cause of action arose and when the action was filed in court. Once this duty has been discharged, it is for the claimant to show that the matter comes within any of the permitted exceptions to the limitation law such as 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. See Ibrahim v. JSC, Kaduna State & ors [1998] 12 SC 20 at 32. However, Rahamaniyya United (Nig.) Ltd v. Ministry for Federal Capital Territory & ors (supra) at page 146, applying Chigbu v. 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. The case continued that if an action against a public officer or public institution and 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. That the conduct of the defendant as to whether he was 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. In is in the attempt to show that the defendant acted mala fide that the claimant posited that the defendant did not act pursuant to the law. This argument turns the principle over its head as it is the very fact of the claimant complaining that his dismissal was not in accordance with the law that brought him to Court in the first place. If the claimant’s counsel turns round to say that for this reason, the defendant cannot enjoy the benefit of the Public Officers Protection Act 2004, then there is some warped reasoning on his part in that regard. In the instant case, I am not accordingly convinced by the argument of counsel to the claimant that the defendants acted outside the colour of their office with no semblance of logical justification. Even if this were to be the case, that is the very reason that brought the claimant to Court in the first place. The thing about the limitation law is: do not sleep over your own right. As held in the concurring judgment of His Lordship Chukwuma-Eneh, JSC in Sulgrave Holdings Inc & ors v. FGN & ors [2012] 17 NWLR (Pt. 1329) 309 at 338, a claimant who sleeps over his right has only himself to blame if he is caught up by the provisions of the Public Officers Protection Act. See also Mr. Iyede Onome Festus & anor v. Management Board of Delta State University Teaching Hospital & anor. The claimant had further argued that because the instant case is founded on a contract of employment, section 2(a) of the Public Officers Protection Act will not avail the defendants. In answer, the Supreme Court in Yare v. National Salaries, Wages and Income Commission applied the same law to the retirement of the appellant as per his contract of employment, and so I do not see how it cannot apply to the instant case. In any event, EG Alapiki v. The Governor of Rivers State & ors cited by the claimant as authority is a Court of Appeal decision and so cannot stand against Yare. On the whole, I find and hold that the claimant’s case is caught up by section 2(a) of the Public Officers Protection Act. The argument of the claimant that he comes within the exceptions to the rule cannot stand, neither is his argument that he is enjoined to exhaust domestic remedies given that that fact was not pleaded as such. The case is accordingly statute-barred and is so hereby struck out. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip