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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 24, 2015 SUIT NO: NICN/LA/670/2012 BETWEEN SUNDAY ETIM UMOH -CLAIMANT AND NIGERIA CUSTOMS SERVICE -DEFENDANT REPRESENTATION Tolu Agbona, for the claimant. L. Halilu (Mrs), for the defendant. RULING The claimant filed this complaint against the defendant on the 21st December, 2012 seeking the following reliefs: 1. A declaration that the purported dismissal of the Claimant by the defendant vide its letter dated the 2nd day of December, 2010 is illegal, null and void and of no effect whatsoever as he was not given fair hearing prior to the purported summary dismissal and victimization of the claimant for his patriotic act. 2. An order reinstating the claimant to his duty post in the defendant’s organization. 3. An order directing the defendant to pay the claimants arrears of salary from November, 2004 till judgment is delivered. Accompanying the complaint is the statement of facts, statement of witness on oath, verifying affidavit and copies of documents to be relied upon at trial. The defendant entered conditional appearance and filed a Notice of Preliminary Objection along with its statement of defence and other accompanying processes on the 24th October, 2013. The Preliminary Objection is challenging the jurisdiction of the court to hear this suit on the ground that the claimant’s action is statute barred by virtue of Section 2 (a) of the Public Officers Protection Act Cap 379 of 2004. The Objection is supported by a written address. In opposing the objection, the claimant filed a written address dated 31st January, 2014 and filed on 21st, February, 2014. The defendant filed a reply on points of law dated 4th March, 2014. Both parties adopted their written addresses at the hearing of the Objection. Learned Counsel to the Defendant raised one issue for determination as follows: Whether this action of the claimant against the defendant/applicant is statute barred by virtue Section 2 (a) of the Public Officers Protection Act Cap 379 of 2004 He submitted that this action of the claimant is statute barred by virtue of Section 2 (a) of the Public Officers Protection Act Cap 379 of 2004. He submitted that the definition of ‘any person’ in the Section 2 (a) of the Public Officers Protection Act includes artificial persons such as a corporation sole, company, or any body of persons corporate or unincorporated and includes the defendant. He submitted that Section 2 (a) of the Public Officers Protection Act Cap 379 of 2004 gives full protection to all public officers engaged in the execution of public duties who at all material time acted within the confines of their public duty citing Ibrahim V. J.S.C (1998) 14 (pt. 581) 1.He argued that the Public Officers Protection Act does not prevent or deny a citizen the right to go to court but only restricts the period within which a public officer acting within his official function may be sued for any perceived wrong from the action of the public officer referring to Bassey V. Minister of Defence (2000) All FWLR (Pt. 343) 1799. He submitted that where an action is statute barred a claimant who has cause of action loses the right to enforce the cause of action by judicial process because the period for instituting such action has elapsed citing the case of N.P.A V. Lotus Plastics Ltd & Ors (2006) All FWLR (pt. 279) 1023. He submitted that the defendant is a public officer and is protected by Section 2 (a) of the Public Officers Protection Act. That the claimant’s cause of action arose 4th August, 2005 and reaffirmed on September, 2010 while this suit was filed on 21st September, 2012 a period more than three months and a such statute barred. On how to determine whether an action is statute barred, counsel referred the court to the cases of Ethiopian Airlines V. Afribank Nigeria Plc (2007 All FWLR 185, Sandra V. Kukawa Local Govt (1991) 2 NWLR (pt.174) 379, Solomon V African Steamship Co. Ltd (1928) 9 NLR 99, Fadare & Ors V. A.G Oyo State (1982) NSCC 52,Board Trade V. Cayzer Irvin & Co Ltd (1927) 610. He then urged the court to dismiss this suit. Learned counsel to the claimant raised one issue for determination as follows: Whether the defendant is entitled to the protection afforded by Section 2 (a) of the Public Officers Protection Act Cap 379 of 2004 in the circumstances of this suit. He submitted that the protection afforded a public officer by Section 2 (a) of the Public Officers Protection Act is not absolute. He argued that a public officer sued cannot take advantage of it where his action was accentuated by malice or bad faith. He submitted that the court must look at the statement of claim of the claimant in determining whether it has jurisdiction or not and that a cursory look at the claimant’s statement of claim shows evidence of bias and malice. He argued that the claimant was dismissed arbitrarily and without adherence to the rules of natural justice by the defendant because of the role he played in the arrest of the ex-president of Liberia, Mr. Charles Taylor. He submitted that the law is designed to protect the officer who acts in good faith and not one who acts with bias and malice citing Offoboche v Ogoja [2001] 36 WRN 1, Lagos City Council v Ogunbiyi [1969] 10 All NLR 287, Nwankwere v Adewunmi [1966] 1 All NLR 119 at 120. Learned Counsel argued that the protection offered by Section 2 (a) of the Public Officers Protection is not available to the defendant as the said protection is limited to cases where a defendant seeking to rely on it acted in good faith. He submitted that allegation of bias, malice and bad faith against the defendant can only be properly determined at the trial and not at this preliminary stage citing Western Steel Works V. Iron & Steel Workers (1987) 1 NWLR (Pt. 49) 284, Tukur V. Government of Gongola State (Pt. 117) 517. He argued that the defendant acted in bad faith contrary to rules of natural justice and did not give the claimant a fair hearing citing PHCN V. Alabi (2010) 21 N.L.L.R (Pt. 58) 1, Bamgboye V. University of Ilorin (1999) 10 NWLR (622) 290. He finally submitted that where the act of a public officer is tainted by malice the protection afforded by the Public officers Protection Act would not avail the defendant. He urged the court to so hold. Replying on points of law, learned counsel to the defendant submitted that it is trite that issues of malice, bias or fraud must be raised in the pleadings. He urged the court to apply Order 15 of the Rules of this Court adopt the provisions of Order 23 Rule 6 of the High Court Rules of the Federal Capital Territory which provides thus: a party shall plead all matters which show that an action is not to be maintainable or that the transaction is either void, voidable and such other grounds as the case may be which if not raised would be likely to take the opposite party by surprise” He submitted that a party cannot rely on facts which are not specifically pleaded citing I. Yare v National Salaries Wages and Income Commission [2013] LPELR 20520 delivered on 10th May, 2013 in Suit No. SC/254/2005, Burgess V. Bathowen Electrical Equipment Ltd (1943) KB 96, Yusuf V Adegoke (2007) All FWLR (pt. 385) p 384. He argued that there is nowhere the claimant has specifically pleaded issues of bias and malice. He submitted that when the issue of limitation of action is raised in any suit, what the court is to determine at that stage is not the liability or otherwise of the defendant but whether or not such suit itself is competent and maintainable against the defendant. He cited Nigerian Airport Authority V. Abraham Kawagaji (2012) 28 NLLR, Sanni v Okene L.G. & Anor [2005] 14 NWLR (Pt 944) 60 at 74. He urged the court to dismiss the suit in its entirety. Having considered 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. The defendant argues that this action is caught by the provisions of section 2(a) of the Public Officers Protection Act CAP P41 LFN 2004 and as such the action is statute barred. Section 2(a) of the Public Officers Protection Act is reproduced 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. Provided that if the action, prosecution or proceedings be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison; The Public Officers Protection Act applies to both natural and artificial persons. On the authorities, I find the defendant falls within the definition of a Public officer and is covered by the provisions of Section 2 (a) of the Public Officers Protection Act in the exercise of its public or official duties. See Section 18 (1) Interpretation Act CAP 123 LFN 2004 for the definition of public officer, Ibrahim v Judicial Service Commission [1998] 14 NWLR (Pt 584) 1, Offoboche v Ogoja Local Government [2001] 7 SC (Pt 111) 107, Abubakar v Governor of Gombe State [2002] 17 NWLR (Pt 797) 533, Nwaogwugwu v President FRN [2007]1 ALL FWLR (Pt 389)1327. 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 arose on 2nd September 2010 when the claimant was summarily dismissed. This action was filed on 21st December 2012. This is outside the three months statutory limit prescribed by the Act. The claimants’ counsel has argued that this action falls within the exceptions to the limitation law because defendant acted contrary to the confines of its public duties, acted maliciously and in bad faith. The Court of Appeal in the case of Rahamaniyya United (Nig.) Ltd v. Ministry for Federal Capital Territory & ors [2009] 43 WRN 124 at page 146, applying the Supreme Court decision in Chigbu v. Tonimas (Nig.) Ltd [2006] 31 WRN 179; [2006] 9 NWLR (Pt. 984) 189 at 210 SC held that the propriety or otherwise of the act of the defendant is not a relevant consideration for the applicability of the Public Officers Protection Act; 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 it was malicious or not is irrelevant in determining whether the cause of action is statute-barred under the Public Officers Protection Act, referring to Egbe v Adefarasin [2002] 14 WRN 57 and Aremo II v. Adekanye [2004] 42 WRN 1 SC. The reasoning and point here is that the action must first be filed within time to enable the court look into the merits or otherwise of the case. Also see Egbe v Alhaji [1989] 1 NWLR (Pt 128) 546 at 596. I find that his suit has been instituted outside the three months of accrual of cause of action. The claimant slept on his enforceable rights for about two years. The defendant is protected by Section 2 (a) of the Public Officers Protection Act. I therefore hold that this action is Statute barred and decline jurisdiction to entertain this matter. It is hereby dismissed. I make no order as to costs. Ruling is entered accordingly. ----------------------------------------- Hon Justice O.A.Obaseki-Osaghae