Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE OYEWUMI. OYEBIOLA.O DATED 3RD OF MARCH, 2015 SUIT NO: NICN/LA/372/2014 BETWEEN MR EMMANUEL OLANREWAJU YEWANDE - CLAIMANT AND NIGERIAN POSTAL SERVICE - DEFENDANT REPRESENTION- Ajayi Y.A. Miss with her is C.W. Bello (Mrs.) for the claimant M.D. Sule for the defendant. JUDGMENT A complaint dated 27th day of August, 2014 was filed by the claimant against the defendant praying the following reliefs: 1. A DECLARATION that the action of the defendant amounts to unlawful dismissal. 2. AN ORDER that the Defendant reinstate the claimant. 3. AN ORDER that the Defendant should pay the claimant’s salaries and allowances from day of dismissal till judgment is given. The claimant claims the sum of N1,000,000.00 (One Million Naira) only as damages for the emotional and financial distress he has suffered on account of the Defendant/Respondent attitude which has affected the his health. The claimant further claims 10% interest from the date the matter is filed till the date of judgment and thereafter 5% interest till final liquidation of the indebtedness and for such further cost as adjudged by this Honorable court. Claimant filed also all his accompanying processes and documents he intends to rely on in proof of his case. The defendant also responded by filling its statement of defence and accompanying processes on the 24th November, 2014. However, on the 30th of September, 2014, the defendant filed a Notice of Preliminary Objection praying for the following; 1. AN ORDER dismissing this suit against the defendant /applicant as the said suit is barred by provision of Section 59 of the Nigerian Postal Service Act, CAP N127 Laws of the Federation, 2004. 2. An Order dismissing this suit, as same is an abuse of Court/judicial process. The grounds upon which this order is sought are; 1. That the cause of action in this suit arose on the 11th, July, 2012. 2. That the Nigerian Postal Service Act provides for 12 months within which to file any action against the defendant or any of its officials. 3. That this suit was filed on the 27th August, 2014, which is more than the stipulated period provided by the law. The application is supported by a six (6) paragraph affidavit deposed to by one Obaje Benjamin on the 24th of November, 2014. Accompanying the Motion on Notice is a written address in support wherein defendant’s counsel using the grounds upon which the Preliminary Objection is sought submitted that; The plaintiff’s claim in his writ of summons dated 27th August, 2014 was filed outside the stipulated period as provided for in Section 59 of the Nigerian Postal Service Act, CAP N127 Laws of the Federation, 2004 which provides for 12months within which an action can be filed against the defendant or any of its officials. He submitted that claimant was dissatisfied with his dismissal, and wrote to his employer to convert his dismissal to retirement on 3rd August, 2012 and 25th October, 2012 respectively. The appeal failed and it led to the filing of this suit on the 27th August, 2014 more than the 12 months period provided by the law he cited in support the cases of BAKARE V NIGERIAN RAILWAY CORP [2007] 7-10 SC 1 AT 17 AND 26; IBRAHIM V JUDICIAL SERVICE COMMITTEE [1998] 14 NWLR (PT 584) 1 AT 31-32 where the Supreme Court held that; “An action that is barred by statute removes the right of the plaintiff as the Limitation Law borders on the jurisdiction of the court since a court that assumes jurisdiction after the time stipulated by law for such action, has no jurisdiction to hear such matter” Continuing counsel stated that the cause of action arose on the 11th July, 2012 when the plaintiff was dismissed from service. He cited the case of JOHN E. EMIANTOR J. V THE NIGERIAN ARMY & 4 ORS [1999] SC 89 AT 92. That the suit filed by the claimant is an abuse of Court process and intended to annoy the defendant. Counsel urged the court to so hold. The respondent on the 20th of November, 2014 responded by filing his written address dated 20th of November, 2014 wherein three issues were distilled for the Court’s determination; 1. The jurisdiction of the Court. 2. Whether a cause of action has arisen. 3. Whether the cause of action is statute barred. Counsel reproducing Section 254C of the Constitution of the Federal Republic of Nigeria, (Third Alteration Act, 2010) and Section 7 of the National Industrial Court Act on jurisdiction, submitted that the court has the jurisdiction to hear and determine same. Counsel submitted that the matter before the Court is a labour issue which involves unlawful dismissal, unpaid salaries and allowances. Counsel stated that to prove a cause of action, it must be shown that a master servant relationship existed between the parties. He cited the case of SMITH V GENERAL MOTOR CAB CO [1911] AC 188. Continuing, counsel stated that it is not automatic that every agency of the Federal Government must fall within the contemplation of the Public Officers Protection Act and it must be shown that a defendant acted in pursuance of its public duty in which he sought the protection of the Act thereon. He cited the case of FELIX ANOZIE V A.G OF THE FEDERATION [2008] 10 NWLR (PT. 1095) 278 and submitted that the Public Officers Protection Act does not provide a blanket protection for public officers under the law. Counsel submitted that the defendant is a creation of statute. But the defendant is also one of the enterprises owned fully or partially by the Federal Government whose ownership and operations was partially or fully privatized and commercialized under the provisions of the Public Enterprises (privatization and Commercialization) Act, (Cap P 38)LFN, 2004. That by virtue of its partial commercialization, the defendant’s management in its operation and duties became a commercial enterprise acting on its own commercial interest and profit and not in the pursuance of any Act or law or of any public duty or authority. Counsel stated that in terminating the employment of the claimant, the defendant acted in the normal and ordinary cause of its operations as privatized and commercialized for profit entity. Counsel stated that the defendant is not a public office and its activities can no longer be limited by the Public Officers Protection Act. Therefore the claimant’s cause of action is not statute barred. Counsel urged the Court to so hold. Having carefully gone through the processes before the court particularly the originating processes, the preliminary objection and the written arguments of both parties on the preliminary objection in this case. It is in the considered view of the Court that the issue for determination in this case is whether or not this suit is statute barred and thus divest this Court of its jurisdiction to entertain same. It is the law of common place that when a Court is faced with issues bordering on statute of limitation which in effect goes to the root and the very foundation of the suit, the first point of call in the determination of same shall be the examination of the writ of summons and statement of claim. See. JOSEPH OSEGHALE V THE NIGERIAN POLICE FORCE AND ANOR UNREPORTED SUIT NO NICN/LA/278/2014 DELIVERED ON THE 25TH OF NOVEMBER, 2014; MILITARY ADMINISTRATOR, EKITI STATE V. ALADEYELU (2007) ALL FWLR (PT. 369) 1195 AT 1218-1219; PARAS. G-C, E&G (SC). It is important to note that statute of limitation, or the Public Officers Protection Act seeks to take away the right of action, the right to judicial relief and the right of enforcement from a litigant, it thus lives him empty with an unenforceable cause of action, if the Court finds that the action is outside of the limitation period of either 3 months as it is the case of the Public Officers Protection Act and more or less period depending on the law regulating the affairs of the parties. The case of ABBA V JAMB & ANOR [2015] 53 N.L.L.R.(PT.177) 1 CA.@ 40; It is the law as aptly espoused in the apex Court case of IBRAHIM V JSC, Supra. that where a statute provides for the institution of an action within a prescribe period , proceedings shall not be instituted after the period prescribed by the said statute. Consequently, any action instituted beyond the period stipulated by that statute/law is barred, as the right of the aggrieved party is extinguished by that law. See YARE V NATIONAL SALARIES & WAGES COMM[2013] 12 NWLR (PT 1367, P173. Now, to the main thrust of this case, it is the contention of the claimant that after the close of work on the 6th of June, 2011, he received a phone call at about 3.00pm from Senior Investigation Officer in the Department of NIPOST Investigation Office, Headquarters, Ayinke House in Lagos. When he arrived, the Senior Investigation Officer accused him of conspiring with one Archibong Isong Effiong to steal two mail bags and their content as he was the driver of the said vehicle used in perpetrating the act. Claimant stated that he was asked to write a statement by the Senior Investigation Officer. That he continued coming to work for four months and was later given a query dated 31st October, 2011. He responded to same on the 11th November, 2011 and was subsequently dismissed on the 11th of July, 2012. The Court in ADEKOYA V F.H.A.[2008] 4S.C.167 ' 174-175; OWNERS OF M.V ARABELLA V NAIC [2008] 11 NWLR(PT 1097). The Supreme Court in both cited authorities urged the Court when determining whether or not a case is statute barred to first consider the date the cause of action accrued vis a vis when the matter was filed in Court, the Apex equally enjoins the Court to consider the writ of summons and the statement of claim(facts) in this instance, for it to ascertain whether or not the suit is barred. The pertinent question that requires the succinct answer of the Court now is, when did the claimant’s cause of action arose? The defendant contended that the claimant’s cause of action arose on the 11th July, 2012 when the plaintiff was dismissed from service. Counsel argued that Section 59 of the Nigerian Postal Service Act, CAP N127 Laws of the Federation, 2004 provides for 12 months period within which an action can be instituted against the defendant or any of its officials. As stated supra that in determination of limitation time, recourse is always made to the originating processes, namely the writ of summons and statement of claim to determine the accrual date of the cause of action. The accrual date would then be compared to determine whether it was filed within the prescribed period. In the instant case, the claimant as evinces on record was dismissed on the 11th of July, 2012 whilst his complaint was filed on the 27th of August, 2014 that is two years and a month after the cause of action accrued. Section 59 of the Nigerian Postal Service Act, CAP N127 Laws of the Federation, 2004 provides thus; “Notwithstanding anything contained in any enactment whatsoever, no action shall lie or be instituted in any court against the Postal Service, a member or an officer of the Postal Service, for any act done in pursuance of or execution of any enactment or law of any public duty or authority, or in respect of any alleged neglect or default in the execution of such enactment or law, duty or authority, unless it is commenced within twelve months after the act or default complained of or, in the case of a continuous damage or injury within twelve months next after the ceasing thereof ” It is unequivocal from the above cited statute that no action shall be instituted against the defendant or any of its officer/s for an act done in consonance with or in execution of a law or his duty. The action complained of must be instituted against the Postal Service, a member or an officer of the Postal Service within twelve months after the act or default complained of, or in the case of a continuous damage or injury within twelve months next after the ceasing thereof. The claimant was dismissed on the 11th of July, 2012 whilst his complaint was filed on the 27th of August, 2014 that is two years and a month after the cause of action accrued as against the twelve months stipulated by the Act. The claimant in his written address admitted that the defendant is a creation of statute but alleged that the defendant is also one of the enterprises listed in Part 1 of the First Schedule of the Act as owned fully or partially by the Federal Government whose ownership and operations was partially or fully privatized and commercialized under the provisions of the Public Enterprises (privatization and Commercialization) Act (Cap P 38) LFN, 2004. That by virtue of its partial commercialization, the defendant’s management in its operation and duties became a commercial enterprise acting on its own commercial interest and profit and not in the pursuance of any Act or law or of any public duty or authority. He cited Section 8 of the Public Enterprises (privatization and Commercialization) Act (Cap P38) LFN, 2004, he did not adduce any fact as to when the defendant was privatized and who the new owner of the defendant is. Claimant did not adduce evidence before this Court to show whether or not the Government has a controlling share or still has interest in the defendant or not. Assuming, the Federal Government sold part of its interest as alleged by the claimant, the fact still remains that the Federal Government has controlling shares in the defendant, and if that is so, the defendant is still a Public Service. I hold this considered view, premise on the position of the law, which is that by Section 318 of the 1999 Constitution as amended, Public Service of the Federation includes staff of any company or enterprise, in which the government of the Federation or its agency owns controlling shares or interest, and Section 18 of the Interpretation Act defines ''Public Officer'' as a member of the Public Service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria. See the case law authority of N.S.P.M.C LTD V. ADEKOYA [2003] 16 NWLR (PT. 845) 128. As I stated earlier, whether or not the defendant is partly own by government and another, the law is that it is still a Public Service and its staff are Public Officer. I so find. There is no evidence on record to show that it is the office of Public enterprise that dismissed the claimant. Assuming the office of Public Privatization has any interest whatsoever, which I strongly doubt. Section 23(1) and (2) of the Public Enterprises (Privatization and Commercialization) Act (Cap P38) LFN, 2007, provides that; “(1). Subject to the provisions of this Act, the provisions of the Public Officers Protection Act shall apply in relation to any suit instituted against any officer or employee of the bureau. (2) notwithstanding anything contained in any other law or enactment, no suit shall lie or be instituted in any court against any member of the Council, the Director-General or any other officer or employee of the Bureau for any act done in pursuance or execution of this Act or any other law or enactment, or of any public duty or authority or in respect of any alleged neglect or default in the execution of this Act or such law or enactment, duty or authority or be instituted in any court unless- (a). it is commenced within three months next after the act, neglect or default complained of; or (b). in the case of a continuation of damage or injury, within six months next after the ceasing thereof.” It is obvious from the above provision which is in all fours with the provision of Public Officers protection Act and in tandem with Section 59 of the Nigerian Postal Service Act, supra, it can be said that by a community reading of both legislation, this suit is still caught up by the limitation Statute as cited above. As there is no dispute to the fact that the defendant is a public office or that the officer who signed the letter of his dismissal is not a public officer or he acted malafide, i.e outside the colour of his office. The claimant averred that he wrote two letters dated 3rd August and 25th October, 2012 to the Post Master General appealing for the consideration of his dismissal and his request was turned down vide a letter dated 7th September, 2012. The law is settled that intervening actions as the one described cannot count in the computation of the period of limitation. It is the law that an action barred by statute no amount of the merit of the claimant’s case, it affects the life of his case and thus robs the judex of competence to adjudicate on same. Consequently, I find that the failure of the claimant to file this suit within the prescribed twelve months period, is fatal to the case at hand and divest the Court of its jurisdiction to entertain same. Claimant's case is hereby dismissed. No order as to cost. Judgment is accordingly entered. HON. JUSTICE OYEWUMI OYEBIOLA. O JUDGE