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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: March 3, 2015 SUIT NO. NICN/LA/127/2013 BETWEEN MR. PHILIP BIOKPO - CLAIMANT AND 1. NATIONAL DRUG LAW ENFORCEMENT AGENCY 2. THE CHAIRMAN, NATIONAL DRUG LAW ENFORCEMENT AGENCY 3. THE DIRECTOR OF ADMINSTRATION AND FINANCE, DEFENDANTS NATIONAL DRUG LAW ENFORCEMENT AGENCY 4. THE ASSISTANT DIRECTOR OF ADMINISTRATION AND FINANCE NATIONAL DRUG LAW ENFORCEMENT AGENCY REPRESENTATION Adegoke Adedoyin, for the claimant. Lambert Nor, for the defendants. RULING The claimant filed this complaint against the defendants on 8th March 2013 seeking the following reliefs: 1. A declaration that the demotion of the claimant from the rank of Senior Narcotic agent to the rank of Narcotic agent vide letter dated September 22, 2011 and signed by the 4th defendant on behalf of the 2nd defendant is unlawful, void, unconstitutional and a gross violation of the claimant’s fundamental right to fair hearing and freedom from discrimination. 2. A declaration that the posting and continued deployment of the claimant to Damaturu, Yobe State in October, 2011 by the 2nd defendant even in the face of actual, apparent and impending danger to the claimant’s life was ill-conceived, malicious and in bad faith and threat of infringement of the claimant’s right to life as guaranteed under the Constitution and the Constitution and the African Charter on Human and People’s Rights. 3. A declaration that the entire process leading up to the guilty verdict of the 1st defendant against the claimant and to the claimant’s dismissal, is fundamentally defective, unlawful, unconstitutional and a gross violation of the claimant’s fundamental human right to fair hearing. 4. A declaration that the purported dismissal of the of the claimant from the service of the 1st defendant vide a letter of termination dated July 25, 2102 but signed on December 3, 2012 by the 4th defendant on behalf on behalf of the 2nd defendant on account of the claimant being found guilty of the offence of tearing and tampering with station dairy contrary to and punishable under paragraph 5, Schedule 1, Part X of the NDLEA Regulation 2001 is unlawful, wrongful, null and void, not having complied with either the fair hearing requirements of the law or stator procedure for termination of the claimant’s employment. 5. An order setting aside the demotion of the claimant from the rank of Senior Narcotic Agent to the rank of Narcotic Agent vide letter dated September 22, 2011 and signed by the 4th defendant on behalf of the 2nd defendant as same is unlawful, void, unconstitutional and a gross violation of the claimant’s fundamental right to fair hearing and freedom from discrimination. 6. An order setting aside the posting and continued deployment of the claimant to Damaturu, Yobe State in October, 2011 by the 2nd defendant even in the face of actual, apparent and impending danger to the claimant’s life for being ill-conceived, malicious, in bad faith and a threat of infringement of the claimant’s right to life as guaranteed under the Constitution and the African Charter on Human and Peoples’ Rights. 7. An order setting aside the entire process leading up to the “guilty” verdict of the 4th defendant against the claimant and the claimant’s wrongful dismissal from the employment of the 1st defendant as fundamentally defective, unlawful, unconstitutional and a gross violation of the claimant’s fundamental right of fair hearing. 8. An order setting aside the claimant’s dismissal from the service of the 1st defendant vide a letter of termination dated July 25, 2012 but signed on December 3, 2012 by the 4th defendant on behalf of the 2nd defendant for being unlawful, null and void, not having complied with either the fair hearing requirements of the law or statutory procedure for the termination of such appointment. 9. An order restraining the defendants, jointly and severally from giving any effect whatsoever to letter of termination dated July 25, 2012 but signed on December 2, 2012 by the 4th defendant on behalf of the 2nd defendant. 10. An order compelling the 1st defendant to pay to the claimant the claimant’s unpaid promotion bonus of N33,000.00 (Thirty Three Thousand) following his promotion to the rank of Senior Narcotic Agent in December, 2010. 11. An order compelling the 1st defendant to pay to the claimant the sum of N58,630.00 (Fifty Eighty Six Hundred and Thirty Naira) being the unpaid balance of the claimant’s salary from September, 2011 when the claimant was demoted (from Senior Narcotic agent to Narcotic Agent) to July, 2012. 12. An order compelling the 1st defendant to pay to the claimant the sum of N582,000.00 (Five Hundred and Eighty Two Thousand Naira) being the unpaid balance of the claimant’s salary from August 2012 to December 2012 when the claimant’s appointment was terminated. 13. Interest on the sum in (j) above at the rate of 21% per annum, from January 1, 2011 till the date of judgment in this suit and thereafter at 10% per annum till the final liquidation of the sum thereof. 14. Interest on the sums in (k) above at the rate of 21% per annum from September 22nd, 2011 till the date of judgment in this suit, and thereafter at 10% per annum till the final liquidation of the sum thereof. 15. Interest on the sums in (l) above at the rate 21% per annum from August 1st, 2012 till the date of judgment in this suit, and thereafter ate the rate of 10% per annum till the final liquidation of the sum thereof. 16. General damages in the sum of N25,000,000.00 (Twenty Five Million Naira) jointly and severally against the defendants in this suit for the wrongful termination of the claimant’s employment. 17. Exemplary damages in the sum of N10,000,000.00 (Ten Million Naira Only) against the defendants jointly and severally for breach of the claimant’s right to fair hearing culminating in the wrongful termination of the claimant’s employment. Accompanying the complaint is the statement of facts, witness statement on oath and copies of documents to be relied upon at trial. That defendants entered appearance and filed their statement of defence, witness statement on oath and copies of documents on June 11, 2013. The claimant filed a reply to the statement of defence on June 27, 2013. On the 17th February 2014, the defendant a filed a motion on notice pursuant to Section 2 (a) of the Public Officers Protection Act CAP P41 LFN 2004 praying for : 1. An order setting down for hearing the preliminary objection on point of law to the effect that the claimant’s action is statute barred in accordance with the Public Officers Protection Act Cap P41 Laws of the Federation of Nigeria 2004. 2. An order dismissing this suit on the ground that it is statute barred. 3. And for such further or other orders as this court may deem fit to make in the circumstances. The grounds upon which the objection is based are as follows: 1. The Honourable court lacks jurisdiction to entertain this suit because it was filed outside the three months from the date of termination of appointment. 2. The court lacks jurisdiction to entertain this suit having regard to the true and proper meaning and intendment of Section 2(a) of the Public Officers Protection Act Cap P41 Laws of the Federation of Nigeria 2004. 3. The instant suit is incompetent and therefore ought to be dismissed. The objection is supported by a 5 paragraphs affidavit sworn to by Kareem M. Olayinka and a written address. In opposing the motion, claimant deposed to a counter affidavit on March 20 2014 and filed a written address in support. The defendants were given leave to orally reply on points of law at the hearing of the motion on 10th December 2013. Learned counsel to the defendant raised the following issues for determination: 1. When did the cause of action accrue to the plaintiff and when was the action filed. 2. Whether the acts of the defendants were done in the performance of their statutory duty. 3. Whether there is any effect of actions commenced outside the three months limitation period. 4. Whether the first defendant being an artificial person is entitled to protection under Public Officers Protection Act. He submitted that the only way to ascertain when the cause of action accrued is to look at the complaint and statement of claim to enable the court determine if the action is caught by the three months limitation under Public Officers Protection Act. He submitted that the cause of action arose on 25th of July, 2012 when the termination of appointment letter was signed and dispatched to the claimant’s command. Counsel submitted that the acts complained of by the claimant were lawfully done in the exercise of statutory powers and duties conferred on the defendants by Section 3 of the NDLEA Act, CAP N30, LFN, 2004. That the claimant filed this suit on 8th March, 2013 a period of over three months after the cause of action accrued to the claimant. He submitted that the action is caught by the three months limitation period under the Public Officers Protection Act, 2004 and therefore the action is statute barred and incompetent. He cited FRN v Gold (2007) 11 NWLR (Pt. 1044) 1, Egbe v Adefarasin (1987) 1 NWLR (Pt.47) 1, Nwaogwugwu v President of Federal Republic of Nigeria (2007) All FWLR (Pt. 358) 1151, Onadeko v Union Bank of Nigeria Plc (2005) All FWLR (Pt. 250) 57, Kasandubu v Ultimate Petroleum Ltd (2008) All FWLR 155. Counsel further submitted that once an action is statute barred the plaintiff is left bare with no other remedy. He submitted that in situations like this what the court is to decide is whether the action could be maintained or whether the defendants are liable. He submitted that the provisions of the Public Officers Protection Act applies to both natural and artificial persons and that the applicant is a creation of statute by virtue of National Drug Law Enforcement Agency Act Cap N30 LFN, 2004. He cited Ibrahim V. Kaduna State Judicial Service Committee (1998) 14 NWLR (Pt. 584) 1, FGN V. Zebra Energy (2002) 12 NSCQR 172. He then urged the court to dismiss this suit. Learned counsel to the claimant raised three issues for determination as follows: 1. Should paragraph 4 a-j of the defendant/applicants’ affidavit be struck out for offending the provisions of the Evidence Act. 2. Whether considering the entire circumstance of the present case, the claimant’s suit is statute barred. 3. Considering that the bulk of the reliefs sought by the claimant relate to the enforcement of his fundamental right, is the claimant’s action sustainable after the expiration of the 3 months. He submitted on issue one that the legal requirement for the content of an affidavit is set out in Section 115 of the Evidence Act. He submitted that the courts have held that where an affidavit is in contravention of Section 115 of the Evidence Act, the court will have no option but to strike out the offending paragraphs, citing Abiodun v A.G Federation (2007) 15 NWLR (Pt. 1057) 359. He argued that a careful reading of defendants affidavit shows that paragraph 4 a-j either contain a legal argument and or conclusion. He urged the court to strike out paragraph 4 a-j of the affidavit in support. Counsel submitted that in determining whether or not an action is statute barred the time at which the alleged wrong occurred will be compared to the date of filing the writ. He submitted that it is unnecessary to call for evidence at this stage as the pleadings and the date of filing the writ will suffice for the purpose of making this determination citing Forestry Research Institute of Nigeria V. Gold (2007) 11 NWLR (Pt. 1044) 1 and Egbe v Adefarasi (supra). He further submitted that where there is challenge to jurisdiction on the basis of a statute of limitation the material date for the accrual of action is the date alleged by the plaintiff in his claim. He submitted that a clear statutory exception exist where the act of the public servant complained of is one which is of a continuing nature citing S.P.D.C.N Ltd v Amadi (2010) 13 NWLR (pt. 1210) 123. He argued that in cases involving the failure or refusal to remit money due, the courts have held that the continued deprivation of funds which the plaintiff is entitled to constitutes continuance of injury. He relied on the case of Attorney General of Rivers State V. Attorney General of Bayelsa State (2013) 3 NWLR (Pt. 1340) 123. He submitted that in the instant case the claimant has suffered injuries that are yet to be remedied; and as the defendants’ default continues the claimant’s cause of action becomes fresh. He submitted that the claimant’s salaries before the termination of his employment remain unpaid just like the revenues accruing to the plaintiff in the case of Attorney General of Rivers State V. Attorney General of Bayelsa State supra. He argued that inordinate and willful refusal of the defendants to pay the claimant his outstanding salary smacks of bad faith and finds no support in the defendants staff handbook. He submitted that time begins to count from the time the wrongs complained of ceased to exist. Learned Counsel submitted that part of the claimant’s case is for payment of his unpaid salaries from July till December when he was wrongly dismissed. He contended that the claimant’s action falls squarely within the recognized exceptions to the limitation law. He relied on the case of FGN V. Zebra (supra). He submitted that the protection available under Section 2 (a) of the Public Officers Protection Act can only avail a public officer qua public officer. That the defendants erroneously assert on the strength of Ibrahim V. JSC and FGN V. Zebra Energy Limited that the 1st defendant is a public officer. He argued that that assertion cannot be correct in light of the case of Attorney General of Rivers State V. Attorney General of Bayelsa State (supra) where he contended that the Supreme Court held that National Boundary Commission was an agency of the Federal Government of Nigeria but it is not a public officer within the scope of the Public Officers Protection Act. He argued further that the position of the law now is to exclude government agencies such as the 1st defendant from the protection of the Act. Counsel contended that for the protection afforded a public officer under the Act to be invoked, the public officer must act within the scope of his duties under statute. He submitted that bulk of the claimant’s claims is refusal of the defendant to pay his salaries, his promotion bonus, the claimant’s unlawful detention and wrongful termination without compliance with the laid down process. He argued that the defendants were not acting under the scope of their powers under Sections 3 and 4 of the National Drug Law Enforcement Agency Act but outside the scope of their duties. Counsel further submitted that the claim of the defendant borders mainly on the infringement of his fundamental human rights under Chapter IV of the Constitution. He argued that by Section 254C (1) (d) of the 1999 Constitution, the powers of this court extends to any civil causes or matters relating to or connected with any dispute over the interpretation and application of Chapter IV of the Constitution as it relates to any matter which the court has jurisdiction to hear and determine. He submitted that an application for the enforcement of fundamental human rights shall not be affected by any limitation statute whatsoever. That the Fundamental Right (Enforcement Procedure) Rules supercedes the provisions of the Public Officers Act which is a mere statute. He urged the court to hold that the matter is not statute barred and set same down for hearing. Replying on points of law, learned counsel drew the attention of the court to the provisions of Sections 1, 2 & 3 of the National Drug Law Enforcement Agency Act determining whether the defendant is a public officer. He cited Planned Parenthood of Nigeria V. Dr. A. Babatunde Suleiman (2004) 11 NWLR (Pt 883) 1. He submitted that the 1st defendant is a public officer by the said decision and that the function of the office determines if it is a public officer. He submitted that the law does not recognize any fact or reason for the claimant to wait before filing an action. He argued that negotiations are not a bar to filing an action. He submitted that when an affidavit states that a suit was filed and gives particulars, it is an issue of fact and not law. He submitted that the case of Abiodun v Attorney General (supra) does not apply and that the subject matter of this suit is an exercise of disciplinary powers of the employer which is not outside the scope of the powers of the defendants. That the claimant is bound by the terms and conditions of his service which was violated and that the 1st defendant acted properly. He argued that the issue of salaries is based on contract and the defendant cannot be said to have violated human rights outside claim for salaries. He referred to Order 11 Rules 2 of the Fundamental Rights Enforcement Procedure Rules. He submitted that the Public Officers Protection Act is meant to protect officers who act in good faith, citing the case of CBN V. Okojie (2004) 10 NWLR (pt. 882) 523. He urged the court to dismiss this suit. I have carefully considered the originating process, the submissions of counsel and the authorities relied upon. The issues to be determined are whether the respondents are public officers; and secondly whether this action is caught by the Public Officers Protection Law. 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 fulfillment 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 complaint and the statement of facts alleging when the wrong was committed which gave rise to the cause of action and comparing that date with the date the complaint was filed. If the time on the complaint is beyond the period allowed by the limitation law, the action is statute barred. See Elabanjo v Dawodu [2006] 6-7 SC 24. The defendants/applicants argue that this action is caught by the provisions of Section 2(a) Of the Public Officers Protection Act 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. In determining the applicability of the Public Officers Protection Act as a statute of limitation, the Supreme Court had in Ibrahim v. JSC, Kaduna State & Ors [1998] 14 NWLR (Pt. 584) 1; [1998] 12 SC 20 held that the term public officers is not restricted to human beings who are the public officers but that it includes public offices and public institutions. The claimant has argued that in this instance, the Public Officers Protection Act is not applicable to the 1st defendant in light of the recent Supreme Court decision in A-G Rivers State v A-G Bayelsa State [2013] 3 NWLR (Pt 1340) 123. He submits that because the National Boundary Commission was denied the status of ‘public officer’ by the Supreme Court in A-G Rivers State v. A-G Bayelsa State & anor, the 1st defendant in this case must likewise not be regarded as a public officer. The basis for denying the National Boundary Commission the status of Public Officer must be understood within the context of the overall decision. This was a case within the original jurisdiction of the Supreme Court. The question was whether the Federation or State is a Public Officer within the contemplation of Section 2(a) of the Public Officers Act. The case was between a State and another State with the Federal Government as a co-defendant. The reasoning of the Supreme Court was that the State and the Federation who were represented by their respective Attorneys-General cannot be public officers within the contemplation of the Public Officers Protection Act; and in like manner, the National Boundary Commission as an agency of the Federal Government is not such a ‘public officer’ as defined in the case of Ibrahim v J.S.C. In this instant case however, I find the 1st defendant to be a public officer as defined by the Supreme Court in Ibrahim v. JSC, Kaduna State supra. I therefore do not agree with the submissions of the claimant’s counsel that the 1st defendant is not a Public Officer. A-G Rivers State v. A-G Bayelsa State & anor must be seen as merely creating an exception to the conception of public officer in terms of the Public Officers Protection Act, and that exception does not apply to the instant case. Also see Mr Iyede O.Festus v Management Board of Delta State University Teaching Hospital (Unreported) Suit No NICN/LA/312/2013. The claimant in his pleadings has admitted that the 2nd, 3rd and 4th defendants are public officers. I find that all the defendants are covered by the provisions of the Public Officers Protection Act in the exercise of their public or official duties and I so hold. See Ibrahim v Judicial Service Commission [1998] 14 NWLR (Pt 584) 1, 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, Ibafon Co. Ltd v. Nigerian Ports Authority Plc [2000] 8 NWLR (Pt. 667) 86. The cause of action arose when the claimant was given a letter terminating his appointment on 3rd December 2012. This action was instituted on March 8, 2013. This is about six days after the accrual of the cause of action. This is outside the three months statutory limit. Counsel to the claimant has argued that this matter comes within the permitted exceptions to the limitation law because the injury is a continuing one as they are claims for work done, unpaid salaries and allowances and unpaid promotion bonus. The test on “continuance of damage or injury” has been laid down in A-G Rivers State v. A-G Bayelsa State & anor supra as cited by the claimant’s counsel. At pages 148 – 149, the Supreme Court held that the case for the deprivation of allocation, which the plaintiff was entitled to every month and same has not ceased, was “a situation continuance of damage or injury which has not ceased”; and so the defence of the Public Officers Protection Act would not avail the 1st defendant who had raised it. In the instant case, the claimant ceased to be in office on 3rd December 2012. There is, therefore, no question as to the existence of a deprivation of an entitlement that comes in periodically and has not ceased after 2012. This being the case, the claimant cannot claim the benefit of the exception to the Public Officers Protection Law. The definition of the phrase “continuance of the injury” by case law authorities means continuance of the “act which caused the injury” and not the injury itself. See Akauve Moses Osoh & ors v. Unity Bank Plc [2013] 9 NWLR (Pt. 1358) 1 at 48 and 50, where the Supreme Court held that the action instituted by the claimants robbed the Court of its jurisdiction because as at the time the action was brought the claimants were no longer in employment of the defendant. The claimants’ counsel has argued that the defendants acted contrary to the confines of their public duties, and have acted maliciously and in bad faith which is outside their statutory duties. 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 Chigbu v. Tonimas (Nig.) Ltd [2006] 31 WRN 179; [2006] 9 NWLR (Pt. 984) 189 SC at 210 para D-E, 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; 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; and 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. Learned counsel to the claimant has argued that the bulk of the reliefs sought by the claimant relate to the enforcement of his fundamental rights and that an application for the enforcement of fundamental rights shall not be affected by the limitation laws. I agree that Order III of the Fundamental Rights Enforcement Procedure Rules (FREP) 2009 makes this provision. However, this suit is not brought under the FREP Rules to which Order III would apply. A look at the reliefs being claimed show that the main reliefs are in respect of the claimant’s employment and work related claims while reliefs 6, 7 and 8 which are ancillary to the main claim are in respect of the enforcement of fundamental rights under Chapter IV of the 1999 Constitution. I hold that Order III of the FREP Rules 2009 is not applicable in this instance. The claimant argued that paragraphs 4 (a-j) of the affidavit in support of the motion violate Section 115 of the Evidence Act and should be struck out. I have taken a careful look at the said paragraphs and hold that they do not offend Section 115 of the Evidence Act as they contain statement of facts. I find that his suit has been instituted outside the three months of accrual of cause of action. I hold that this action is Statute barred. The defendants are protected by Section 2 (a) of the Public Officers Protection Law. This court lacks jurisdiction to entertain this matter. It is hereby struck out. I make no order as to costs. Ruling is entered accordingly. ----------------------------------------- Hon Justice O.A.Obaseki-Osaghae