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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A OBASEKI-OSAGHAE DATE: February 12, 2015 SUIT NO. NICN/LA/497/2013 BETWEEN MRS. FOLASHADE OLUFEMI AYENI CLAIMANT AND 1. MINISTRY OF AVIATION 2. FEDERAL AIRPORTS AUTHORITY OF NIGERIA DEFENDANTS REPRESENTATION C.W Iroh for the claimant. Chris Imy-Erhabor (Assistant Director) for the 1st defendant. D.C Omuna-Amadi for 2nd defendant RULING The two defendants each filed a Notice of Preliminary Objection challenging the jurisdiction of the court to entertain the claimant’s action. I will begin with the objection filed by the 1st defendant dated 23rd September 2013. It is brought pursuant to Section 2(a) of the Public Officers Protection Act, CAP P41 LFN 2004 praying for an order dismissing the suit for misjoinder of parties and the action being statute barred. The grounds upon which the application is made are as follows: 1. The invocation of the adjudicatory powers of the court is contingent on the existence of proper parties before the court without any feature disentitling party. 2. The 1st defendant is an improper party in this, suit. 3. The plaintiff’s suit is statute barred by virtue of the provisions of S.2 (a) of the Public Officers Protection Act, 2004. Accordingly, the suit should be dismissed for the following reasons: 4. The plaintiff was disengaged vide a letter dated 21st September, 2013. 5. The plaintiff commenced this action on 18th September, 2013. The application is supported a written address. The claimant filed a written address in opposition on October 30, 2015. The defendant filed a reply on points of law on 23rd January, 2014. Learned Counsel for the 1st and 2nd defendant raised two issues for determination as follows: 1. Whether or not the adjudicatory powers of this court can be invoked on an improper party to the action. 2. Whether or not the plaintiff’s suit which was commenced on 18th September, 2013 to enforce the cause of action that allegedly arose 21st September, 2012 is statute barred and therefore not maintainable before this court in view of Section 2(a) of the Public Officer (Protection Act) 2004. He submitted that jurisdiction is the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision, citing Drexel Energy and Natural Resources Ltd & Ors v Trans International Bank Ltd [2008] 12 SC (Pt.II) 240, Madulolu v Nkemdilim [1962] All NLR 581. He submitted that the 1st defendant is unknown to law and cannot be a party to this action. He cited National Union of Electricity Emp. V. B.P.E [2010] 3 SCM 135 and urged the court to hold that the 1st defendant is an improper party to this action. It was counsel’s submission that the 2nd defendant is a public officer relying on Ibrahim V. Judicial Service Commission [1998] 12 S.C.N.J 255. He further submitted that in determining the period of limitation, the court is to look at the originating processes alleging when the wrong was committed which gave rise to the cause of action and comparing same with the date on which the suit was filed; that if the time on the originating processes is beyond the period allowed by the limitation law, then the suit is statute barred and therefore not maintainable. He stated that the cause of action arose on 21st September 2012 and this action commenced on 18th September 2013 which is after one year from the accrual of cause of action. He cited Popoola Elabanjo & Anor v Chief (Mrs.) Ganiat Dawodu [2006] 27 N.S.C.Q.R 318, Mrs. Mary Nkemdilim Oranyeli v First Bank of Nigeria Plc [2001] 6 NWLR (Pt. 710) 572, Egbe v Adefarasin [1987] 1 NWLR (Pt. 47) 1, Mrs. O. Adekoya V. Federal Housing Authority [2008] 34 N.S.C.Q.R (Pt. II) 952. Finally, he urged the court to hold that this action is statute barred and not maintainable before this court. Learned Counsel to the claimant raised the following issue for determination: Whether this suit is incompetent on the basis of lack of jurisdiction by this court. He referred the court to Sections 2(a) of the Public Officer (Protection Act) 2004 and Section 20 (1) & (2) of the Federal Airport Authority of Nigeria Act CAP F5 LFN 2004 and submitted that it is the provisions of the Federal Airport Authority of Nigeria Act that will determine the time frame within which a suit ought to be commenced against the defendants and not the provisions of the Public Officers (Protection) Act. Counsel submitted that the Public Officers (Protection) Act is a general provision that stipulates three (3) months for a matter to be instituted against a public officer; while the Federal Airport Authority of Nigeria Act is the specific provision relevant to the facts and circumstances of this suit and gives a maximum of twelve months within which to institute an action against it and its officers. He submitted that on the principles governing construction of special and general provisions in statutes governing same subject matter, the courts have held that a case falling within the words of the special provision must be governed by the special provision and not by the general provision. He referred to N.D.I.C V. Sheriff (2004) 1 NWLR (pt. 855) 563, Ezeadukwa V. Maduka (1997) 8 NWLR (pt. 518) 635, Bamgboye V. Administrator General (1954) 14 WACA 616. Learned counsel argued that the inherent conflict between the Federal Airport Authority of Nigeria Act and the Public Officers Protection Act creates a situation capable of ousting the jurisdiction of the court and the rights of the parties to approach the court constitutionally guaranteed in Section 6 (6) of the 1999 constitution. He urged the court to disregard the argument of the defendant that the court does not have jurisdiction to entertain this suit because it is statute barred. He relied on the cases of Sobamowo V. Elemuren (2008) 11 NWLR (pt. 1097) 12, Elabanjo V. Dawodu (2006) 15 NWLR (pt. 1001) 76. Learned Counsel submitted that the courts have variously canvassed that any person whether natural or artificial can be sued and that no action can lie against any party other than a natural person unless such a party has been accorded the status to be sued expressly, impliedly or by common law. He relied on the case of Madukolu V. Nkemdilim (1962) 2 SCNLR 341, Mandara V. A.G Federation (1984) 1 SCNLR 311, Fawehinmi V. NBA (No.2) (1989) 2 NWLR (pt. 105) 558, Abia State University V. Anyaibe (1996) 3 NWLR (pt. 439) 646, Santa Drilling (Nig) Ltd V. Awala (1999) 6 NWLR (pt. 608) 623, Christaben Group Ltd V. Oni (2008) 11 NWLR (pt. 1097) 84. He submitted that Ministry of Aviation is the proper party to be sued having been recognized by the Federal Airport Authority of Nigeria Act as a supervisory agency. It was his contention that even if the body is not created by any statute, once it discharges a statutory function, it can be sued in that capacity. He referred to Section 147 and 148 of the 1999 Constitution and argued that Ministries are given statutory flavor. Counsel then argued that assuming without conceding that the 1st defendant is not a proper party to be sued the proper order is to strike out the name of the 1st defendant and not to dismiss the entire suit. Replying on point of law, the counsel to the 1st defendant argued that while specific provisions override general provisions in the interpretation of statutes, their arguments are premised on constitutional provision which both the Federal Airport Authority of Nigeria Act and the Public Officers Protection Act are subservient to. He referred to Section 318 for definition of public service of the Federation and submitted that the 2nd defendant falls under this category, and therefore protected by the Public Officers Protection Act. He cited Adekoye & Ors V. Nigerian Security Printing Ltd & Ors (2009) 2 SCM 1, A.G Rivers State V. A.G Bayelsa & Anor (2012) 10 SCM 1, Agboola & Ors V. Gabriel Saibu & Anor(1991) 2 NWLR (pt. 175) 566. He finally urged the court to hold that this suit is statute barred and that the 1st defendant is unknown to law. The 2nd defendant’s Notice of Preliminary Objection is dated 29th November 2013 and is brought pursuant to Section 20 of the Federal Airports Authority of Nigeria Act, Order 11 Rule 1(3) of the NIC Rules praying for the following: 1. An order declaring that this court has no jurisdiction and/or should not exercise any jurisdiction to entertain this suit 2. And order striking out this suit 3. And for such further or other orders as this court may deem fit to make in the circumstances The grounds upon which this objection is brought are as follows: a. The condition precedent to the jurisdiction of the court to entertain the suit was not fulfilled and/or the suit was not properly commenced. b. By the provision of Section 20 of the Federal Airports Authority of Nigeria Act, the claimant or her agent is required to serve upon the 2nd defendant a 3 month written notice of intention to commence the suit stating explicitly the cause of action, the particular of the claim, the name and place of abode of the claimant and the reliefs she claims. c. The claimant did not give any pre-action notice whatsoever to the 2nd defendant. d. The purported pre-action notice listed in paragraph 8 of the claimant’s list of documents was not served upon the 2nd defendant. e. Having regard to the said Section 20 of the Federal Airport Authority of Nigeria Act, the condition precedent to the exercise of jurisdiction to entertain this suit against the 2nd defendant has not been fulfilled. f. In consequence, the suit is otherwise wholly incompetent. g. The court in all the circumstances has no jurisdiction to entertain this suit. The objection is supported by an affidavit sworn to by Omuna-Amadi Nsirim D.C. a legal practitioner and a written address. In opposing the preliminary objection, the claimant filed a counter affidavit sworn to by Ibrahim Salaudeen a litigation clerk on the 21st January 2014 and a written address. The 2nd defendant filed a further affidavit on 19 March 2014 and a reply on points of law. Learned counsel to the 2nd defendant submitted one issue for determination as follows: Whether having regard to the mandatory provisions of Section 20 of the Federal Airports Authority of Nigeria Act, the condition precedent to the exercise of jurisdiction to entertain this suit against the 2nd defendant has been fulfilled. He submitted that it is the law that a condition precedent refers to that which must be done before the right of a party to bring an action may arise citing Nigercare Dev Co Ltd v A.S.W.B [2008] 9 NWLR (Pt 1093) 498 at 520. He reproduced Section 20 (2) of the Federal Airports Authority of Nigeria Act and argued that the claimant did not serve the mandatory pre-action notice on the 2nd defendant and therefore failed to comply with the condition precedent necessary to confer jurisdiction on the court. Counsel submitted that the failure to comply with the mandatory statutory pre-action notice renders the suit incompetent and divests the court of jurisdiction. He cited City Engineering Nig Ltd v Nigerian Airport Authority [1999] 11 NWLR (Pt 625) 76 at 89-90, N.D.C.L v A.S.W.B [2008] Vol 5 MJSC 118 at 147. He then urged the court to strike out the suit. Learned Counsel to the claimant submitted the following issue for determination: Whether this suit is incompetent on the basis of lack of jurisdiction by this Honourable Court? He reproduced Section 20 (1) & (2) of the Federal Airports Authority of Nigeria Act and submitted that the claimant has complied with the provisions as required. He referred to the counter affidavit and stated that the 2nd defendant was served with the pre-action notice and the statement of claim outlining the cause of action, particulars of claim, name and abode of the claimant which was attached to the notice and same was duly acknowledged on the 11th June 2013. He urged the court to dismiss the objection as lacking in merit. Replying on point of law, 2nd defendant’s counsel submitted that there is no evidence that the pre-action notice was served and as such the suit is premature and incompetent citing David Adetona Famadewa v FAAN & Anor (unreported) Suit No: NICN/LA/01/2012 Ruling delivered on 23 November 2012, Inakoju v Adeleke [2007] 4 NWLR (Pt 1025) 423. He then urged the court to strike out the suit. Having considered all the submissions of counsel, the law is trite that a court can only assume jurisdiction if the subject matter is within its jurisdiction and the case has been initiated by due process of law and upon fulfilment of any condition precedent to the exercise of its jurisdiction. See Madukolu v Nkemdilim [1962] 2 SCNLR 341. 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 gave 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. See Elabanjo v Dawodu [2006] 6-7 SC 24. Learned Counsel to the 1st defendant has argued that it is the provisions of Section 2(a) of the Public Officers Protection Act CAP P4 LFN 2004 that is applicable while the claimant’s counsel has submitted that the provisions of Section 20 (1) & (2) of the Federal Airports Authority of Nigeria Act CAP F5 LFN 2004 is the applicable law. It is necessary at this stage to reproduce both provisions. Section 2(a) of the Public Officers Protection Act provides as follows: 2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance of 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 Act, Law, duty or authority, the following provisions shall have effect: (a) The action, prosecution, or proceedings 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 continuance of damage or injury, within three months next after the ceasing thereof. Section 20 (1) & (2) of the Federal Airports Authority of Nigeria Act provides as follows: (1) Notwithstanding anything in any other enactment, no suit against the authority or a member or any employee of the Authority for any act done in pursuance or execution of any enactment or law, or of any public duties or authority, or in respect of any alleged neglect or default in executing such enactment or law, duties or authority shall lie or be instituted in any court unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof. (2) No suit shall commence against the Authority before the expiration of a period of three months after written notice of intention to commence the suit shall have been served upon the Authority by the intending plaintiff or his agent; and the notice shall clearly and explicitly state the cause of the action, the particulars of the claim, the name and place of abode of the intending plaintiff and the relief which he claims. A careful look at the provisions show that the Public Officers Protection Act is of general application while the Federal Airports Authority Of Nigeria Act is specific as it relates to the Federal Airports Authority Of Nigeria and her Officers alone. The law is well established that where there are two provisions of different statutes covering the same subject matter, one special and the other general, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. See Aiyelabegan v Local Govt Service Commission Kwara State [2009] 2 WRN 108 at 125, NDIC v Sheriff [2004] 1 NWLR (Pt 855 563), Ibori v Ogboru [2004] 15 NWLR (Pt 895) 154. In this instance therefore, the applicable law is the Federal Airports Authority Of Nigeria Act which is specific to this case and not the Public Officers Protection Act. The period of limitation to be applied in this case is twelve months as provided in Section 20 (1) of the FAAN Act. 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 has elapsed. See Egbe v Adefarasin [1987] 1 NWLR (Pt 47) 1 at 20, Udoh Trading Coy Ltd v Abere [2001] 11 NWLR (Pt 723) 114. The cause of action in this case arose on the 21st September 2012 when the claimant’s appointment was terminated by the 2nd defendant. This action was filed on September 18, 2013 which falls within the twelve (12) months period provided by Section 20 (1) Federal Airport Authority of Nigeria Act. I find that this action is not statute barred and I so hold. I therefore assume jurisdiction to hear and entertain same. On the issue of the legal status of the 1st defendant, the law is that a party to an action must be clothed with legal personality to sue and be sued. There is no doubt that the 1st defendant oversees the activities of the 2nd defendant. The office of the Minister and his duties is created in Section 147 and 148 of the 1999 Constitution. The Minister of Aviation is not sued as the 1st defendant. The 1999 Constitution has not explicitly created the 1st defendant. I do not agree with the claimant’s counsel submission that the ‘statutory flavor’ of the 1st defendant is sufficient to confer it with juristic or legal personality. In any event, the claimant was appointed by the 2nd defendant. I hereby strike out the name of the 1st defendant. On the issue of the pre-action notice, I have carefully considered the facts deposed to in the counter affidavit sworn to by Ibrahim Salaudeen the litigation officer who personally served the pre-action notice on the 2nd defendant on the 11th June 2013 and the exhibits annexed thereto in proof of the facts. He has deposed to the following facts in paragraphs 7 and 8 of the counter affidavit reproduced as follows: 7. That on reading the letter and seeing that it contained a court process and a pre-action notice I was directed to the legal department where it was received and acknowledged. 8. That I drew the attention of the fact that the stamped acknowledgement copy was faint but was told that the ink has finished and I left with the faintly stamped acknowledgement. The copies of the pre-action notice served on the two defendants are exhibited. The stamp acknowledging receipt on the notice served on the 1st defendant is clearly legible while that served on the 2nd defendant is not very legible. Furthermore, letters written by the claimant’s counsel to the 2nd defendant referred to the pre-action notice. The originating process attached to the notice meets all the requirements of Section 20 (2) of the FAAN Act. I find that the 2nd defendant was served with a pre-action notice. The court is not deprived of jurisdiction to entertain this action as the claimant has complied with the condition precedent. This objection is lacking in merit and is hereby dismissed. Costs of N5,000 is to be paid by the 2nd defendant to the claimant. Ruling is entered accordingly. ____________________________ Hon Justice O.A.Obaseki-Osaghae