Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Tuesday 20, May, 2014 SUIT NO: NICN/ABJ/323/2012 Between: Amakor Pius Claimant AND Federal Inland Revenue Service & Another Defendants REPRESENTATION Claimant present. Defendant absent. S.D Hoke Esq. for the 1st Defendant; Chindo B.Umar appear for the 2nd Defendant. No legal representation for the claimant. JUDGMENT By an Originating Summons filed on the 10th of December, 2012, the claimant raised the following questions for determination Namely (a). WHETHER having regard to the Supreme Court’s decision in CBN Vs IGWILO (2007) 4-5 SC 154 the Claimants appointment with the Defendants is one with statutory flavour and as such could not be lawfully terminated by the First Defendant without the full compliance with the procedures stipulated in Chapter 3 of the Public Service Rules, 2004 and Part V of the Guidelines For Appointment, Promotion and Discipline, 2004. (b). WHETHER the First Defendant was fully in compliance with the provisions of Chapter 3 of the Public Service Rules, 2004, and Part V of the Guidelines For Appointment, Promotion and Discipline 2004, when in purporting to terminate the appointment of the Claimant, it failed to constitute a Junior Staff Committee and/or to invite the Claimant to appear before it so as to defend the allegations of gross misconduct against him before purportedly terminating the appointment of the Claimant through a letter dated the 11th of February, 2005, signed by one A.M. Darmasaude on behalf of the First Defendant. (c). WHETHER having regard to the failure of the First Defendant to constitute a Junior Staff Committee and/or to invite the Claimant to appear before it so as to defend allegations of gross misconduct against him as required by the provisions of Chapter 3 of the Public Service Rules, 2004 before purportedly terminating his appointment through the letter dated 11th of February, 2005 and signed by one A. M. Darmasaude on behalf of the Chairman of the First Defendant was not in gross violation of the Claimant’s right to fair hearing and rules of natural justice as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. (As Amended). (d). WHETHER the letter dated the 11th of February, 2005 and signed by one A.M. Darmasaude on behalf of the Chairman of the First Defendant wherein the First Defendant purportedly terminated the appointment of the Claimant was not null, void and of no effect whatsoever. Upon the court determination of the above question, the claimant seeks the following reliefs (a). A DECLARATION that upon the decision of the Supreme Court in CBN Vs IGWILO (2007) 4-5 SC 154 the Claimants appointment with the First Defendant enjoys statutory flavour. Consequently, the First Defendant cannot lawfully terminate the appointment of the Claimant without full compliance with the provisions of Chapter 3 of the Public Service Rules, 2004 and the Part V of the Guidelines for Appointment, Promotion and Discipline, 2004. (b). A DECLARATION that the First Defendant failed to fully comply with the provisions of Chapter 3 of the Public Service Rules 2004 and Part V of the Guidelines For Appointment, Promotion and Discipline,2004 in purporting to exercise its disciplinary powers over the claimant by reason of the First Defendant’s failure to constitute a Junior Staff Committee and/or to invite the Claimant to appear before it so as to defend the allegations of gross misconduct against him before purportedly terminating the appointment of the Claimant through a letter dated 11th February, 2005 and signed by one A.M. Darmasaude on behalf of the Chairman of the First Defendant. (c). A DECLARATION that the failure of the First Defendant to constitute a Junior Staff Committee and/or to invite the Claimant to appear before it so as to defend the allegations of gross misconduct was in gross violation of the Claimant’s right to fair hearing and rules of natural justice as enshrined in the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999(As Amended). (d). A DECLARATION that the letter dated 11th of February, 2005 and signed by one A.M. Darmasaude on behalf of the Chairman of the First Defendant wherein the Claimant’s appointment with the First Defendant was purportedly terminated is null, void and of no effect whatsoever. The claimant also seeks the following reliefs in the alternative: (a). A DECLARATION that the general conduct of the First Defendant is unconstitutionally terminating the Claimant’s appointment, unlawfully withholding his salaries and entitlements, flagrantly breaching of the conditions of service of the Claimant and his right to fair hearing, was in bad faith, arbitrary, callous, intolerable, oppressive, unreasonable and amounted to repudiatory behaviour on the part of the First Defendant, thus entitling the Claimant to a claim of wrongful dismissal from the services of the First Defendant. The claimant went further to seek the following reliefs jointly and severally against the defendants: a. AN ORDER setting aside the purported termination of the appointment of the Claimant with the First Defendant, (Federal Inland Revenue Service) as contained in the First Defendant’s letter dated 11th of February, 2005 and signed by one A.M. Darmasaude on behalf of the Chairman of the First Defendant. b. AN ORDER compelling the First Defendant to forthwith recall and reinstate the Claimant to his position with the First Defendant without loss of status, years of service, promotions and emoluments. c. AN ORDER compelling the First Defendant to forthwith pay the Claimant special damages in the sum set bellow: (i). PARTICULARS OF SPECIAL DAMAGES Salaries, bonuses, allowances due and accruable to the Claimant as a Grade 04 officer from June 2004 till judgment and/or reinstatement. (The First Defendant are given notice to produce at the hearing a written break down of the salaries, bonuses, allowances, entitlements and promotions which were due and accruable to the Claimant from June 2004 till judgment and/or reinstatement) AN ORDER that the First Defendant pays the Claimant the sum of N20, 000,000.00 (Twenty Million Naira) as Exemplary Damages. In the alternate to 4(b) and as a consequence 3(a) above; the claimant further seek the following a. AN ORDER that the Defendants pay the Claimant the sum of N15,000,000.00 (Fifteen Million Naira) being compensation for wrongful termination of the Claimant’s appointment with the First Defendant, loss of salaries, increments, allowances and entitlements for unexpired years of service. b. AN ORDER for the payment the sum of N10, 000,000.00 (Ten Million Naira) as damages for loss of pension and gratuity. c. AN ORDER that the defendants pays the Claimant the sum of N5, 000,000.00(Five Million Naira) being cost (solicitors fees) incurred by the Claimant in pursuing this action. d. AND FOR SUCH ORDERS or further orders as the court may deem fit to make in the circumstances of this case. In support of his Originating Summons, the Claimant filed a 19th paragraphs Affidavit deposed to by the claimant himself and he attached seven exhibits. Counsel to the claimant, H.N. Egbune Esq. filed a written address dated the 10th of December, 2012 in support of the said originating summons. In reaction to the originating summons, the 1st defendant filed a counter affidavit of 13 paragraphs with 5 exhibits. The affidavit is deposed to by Wilson Yerima. Counsel to the 1st defendant also filed a written address dated 30th of May 2013 in opposition to the claimants originating summons. The 1st defendant went further to file a notice of preliminary objection dated and filed on the 30th of May 2013 wherein he sought for the court order dismissing this suit on three grounds Namely: (1) That this court has no jurisdiction to hear the case (2) That the suit is statute barred by virtue of the Public Officers Protection Act (3) That the incompetent originating process by which this action is commenced robs the court the competence and jurisdiction to entertain the matter. The Notice of Preliminary Objection (NPO) is supported with a 10 paragraph affidavit deposed to by Wilson Yerima, a staff of the 1st Defendant in the Human Capital Management Department. Counsel to the 1st defendant also filed a written Address dated 30th of May 2013 in support of the Notice of Preliminary Objection (NPO). The claimants counsel Mr. H. N. Egbune reacted to the Notice of Preliminary Objection by filing a three paged written address without any counter affidavit to the affidavit of the 1st defendant in the preliminary objection. When the matter came up for argument, the court decided to hear the substantive matter in the originating summons of the claimant and the Notice of Preliminary Objection (NPO) of the 1st Defendant together on the authority of Dapialong Vs Dariye 2007 8 NWLR (Pt.1036) 239; Inakoju Vs Adeleke 2007 2 MJSC I; Senate President Vs Nzeribe Since the preliminary objection touches on the jurisdiction of the court which is a fundamental and threshold issue, I shall proceed to consider it first. In the Notice of Preliminary Objection (NPO) and the written address the 1st Defendant/applicant raised three issues for the consideration of the court. (1) Whether this action can be determined by this court after the limitation period within which the action could be prosecuted. (2) Whether this action can be effectively determine by originating summons when issues of substantial dispute of facts or its likelihood are involved. (3) Whether this Honourable Court has the jurisdiction to hear or determine this suit as presently constituted? On issue one, the 1st defendant counsel S.D. Hoke Esq. emphasized on the fundamental nature of any issue bordering on the jurisdiction of the court. He cited the cases of Madukolu Vs Nkedilim 1962 1 All NLR Pt. 1 at 587. Obiuweubi Vs CBN 2011 7 NWLR 465; AG Lagos Vs Dosunmu 1989 3 NWLR (Pt. 111) 552. Counsel contended that this action is statute barred by paragraphs 4,5,6,7 (a)(b)and c of the 1st defendant‘s supporting affidavit to this Notice of Preliminary Objection and urged the court to compare the content of the writ of summons, statement of claim with the date of the accrual of right of action and the date of filing of writ of summons or complaint. Counsel referred this court to the case of Awokunle Vs NEPA 2007 15 NWLR Pt. 1057 340 CA; Adekunle Vs Aremu 1998 6 NWLR (Pt. 533) 203 at 361; Egbe Vs Adefarasin 1987 All NLR P.I at 20-21. Counsel cited section 2(a) and (b) of the Public Officers Protection Act, Laws of the Federation of Nigeria 2004 and section 55 of the Federal Inland Revenue Service Establishment Act of 2007 to hold that the defendant is a public officer and as such this suit instituted outside the 3 months provided by law is statute barred. Counsel cited the cases of Ibrahim Vs JSC (Kaduna State) 1998 14 NWLR Pt. 5584 and FRIN Vs GOLD 2007 11 NWLR Pt. 1044 I at 24 Counsel further submitted that the cause of action in this suit arose when all the facts and circumstances giving rise to the claimant enforceable rights has happened when the letter of termination was given to him or when his appointment was terminated in 2005, 11th February. The action of the claimant, counsel contended was brought to court on the 10th of December 2012. Counsel urge the court to hold that the claimant action is stale by reason of this limitation Act. He called in aid the cases of Agbefawo Aremu Tajudeen Vs Custom Immigration & Prison Service Board 2009 LPELR CA/L/420/05. Egbele Vs The Post Master General NIPOST 2009 LPELR CA/L/504/07, Olagunju Vs PHCN (2011) 10 NWLR Pt. 1254 P. 113. On issue two, Mr. Hoke referred this court to paragraph 4 of the supporting affidavit to his Notice of Preliminary Objection (NPO) and contended that originating summons cannot be used in a situation where the dispute involves controversial facts, conjectures which are contestable, contentious and disputable. He referred the court further to the Public Service Rule of 2008 which forms the basis of the claimants termination of employment and Order 3 Rule 5A(2) of the National Industrial Court Practice Direction of 2012 and urged the court to hold that such contentious issues raising substantial disputes of facts cannot be tried through originating summons. Counsel call in aid of his submissions the cases of Governor of Kogi State & others Vs Oba S.A. Mohammed 2008 LPELR CA/A/79/07; Fasehun Motors Ltd Vs UBA Ltd 2000 1 NWLR Pt.640 pg 193; Standard Cleaning Services Company Vs The Council of OAU Ile Ife 2011 LPELR CA/1/m211/0 ; Ajagungbade III Vs Adeye 2001 11 NWLR Pt. 738 p.126 Adedipe Vs Theophilous 2005 16 NWLR Pt. 951 P. 253. AG Fed Vs AG Abia State 2001 11 NWLR Pt. 725 690 at 737 On issue 3, counsel outlined the conditions stated by the Supreme Court in the case of Madukolu Vs Nkemdilim on the issue of jurisdiction and posited further that where jurisdiction is lacking, the trial, no matter how well conducted will be in vain; counsel cited the case of Durwode Vs The State 2000 12 SCNJ 1, 8; Ike Vs Nzekwe 1975 2 SC I Akinbinu Vs Oseni 1992 1 NWLR Pt.215 at 110 Olagunju Vs PHCN 2011 10 NWLR (PT. 1254) 113 Counsel finally urge the court to uphold the objections. In his reaction to the Notice of Preliminary Objection (NPO), the claimant counsel, H. N. Egbune filed a five pages written address dated 9th of September 2013 but filed on 10th September 2013 where he raised the following issues for determination; (a) Whether in the circumstances of this case, the claimant’s action is caught up by the provision of section 2(a) of Public Officers Protection Act (POPA) 2004? (b) Whether the claimant’s matter is suitable to be heard and/or determined on originating summons? On issue one, Mr Egbune conceded that this suit was brought outside the 3 months limitation period permitted by Law, but argued that the Public Officers Protection Act (POPA) will not apply where it is to deprive a party of legal capacity to ventilate his grievances in the face of stark injustice. Counsel hinged his submission that this suits comes under the exceptions to the application of the Act. Counsel posited that the Public Officers Protection Act Laws of the Federation of Nigeria 2004 is not applicable to actions founded on breach of contract, recovery of land, claims for work and labour done and on right of workers bordering on salaries and entitlements in the office or acts of public officers done ultra vires their powers, done in bad faith, abuse of office or outside the scope, confine and colour of their statutory or constitutional duty. Counsel cited the cases of NPA Vs Construzion General SPA & Another 1974 1 All NLR 463; Osun State Government Vs Dalami Nig Ltd Suit No 277 2002 and Salako Vs LEDB & Another 20 NLR 169. Counsel also cited in support of the above submissions, the cases of Owoh Vs Nig. Westminister Dredging & MARINE NIC/9/2002 delivered on 1st April 2008. BPE Vs Reinsurance Acquistion Group Ltd 2008 LPELR CA/A/195/M/05; Federal Government of Nigeria Vs Zebra Energy Ltd 2002 18 NWLR Pt. 798 162 at 196. Ibrahim Vs JSC Kaduna State 1998 14 NWLR Pt. 584 I at 32; Moyosore Vs Gov. Kwara State 2012 5 NWLR Pt. 1293 242; Hassan Vs Aliyu 2010 17 NWLR (Pt. 1223) 547 Counsel submitted that since the employment of the claimant was terminated unlawfully and unconstitutionally by the 1st defendant, the 1st defendant acted outside the colour of his office, outside his constitutional or statutory duty which is not protected by the Public Officers Protection Act. Counsel call in aid of this submission the case of AG Rivers State Vs AG Bayelsa State 2013 3 NWLR (Pt. 1340) 123; Oshofa Vs. Federal Inland Revenue Service & Another Suit No NICN/ABJ/325/12 decided by this court. Mr. Egbune submitted further that there is nothing in the affidavit of the 1st defendant/applicant to show that the action of the 1st defendant terminating the employment of the claimant was done in good faith, and as such the 1st defendant cannot claim protection under the Act. Counsel urged the court to regard the judicial authorities cited by the 1st defendant counsel as upholding the fact that the Public Officers Protection Act (POPA) gives immunity and protection to public officers on actions done in good faith and within the colour, scope or authority of their office and that the case of the claimant falls within the exception to the application of Public Officers Protection Act (POPA). On issue two, Egbune Esq. contended that this court should not be interested in form or technicality but issue of justice as held in Oyo State Government Vs Alhaji Barshir Apapa & Others Unreported Suit No NIC/36/2009 delivered by this court on October 3rd 2007. Showunmi Vs Allied Biscuit Co. Ltd NIC/12/2006 on 4/2/08. Counsel submitted that the mere fact that an action is commenced by originating summons instead of the writ or complaint does not make the action incompetent or rob the court of its jurisdiction, rather it is a mere irregularity which can be cured by converting the originating summons to a writ where pleadings can be ordered, filed and exchanged for the purpose of hearing and just determination of the matter in question before the court. Counsel contend further that the filing of counter affidavit with supporting documentary evidences in form of frontloading shows that the 1st defendant has waived its right of complaint or objection as he cannot approbate and reprobate at the same time; Counsel urge the court to discountenance the Notice of Preliminary Objection (NPO) of the 1st defendant as wholly lacking in substance and dismiss it with substantial cost. In considering the notice of preliminary objection of the 1st defendant in this suit, I have formulate the following issues for determination. (1). Given the content of the claim and the applicable law, is this suit caught by the limitation law as contained in the Public Officers Protection Act LFN 2004? (2). In view of the questions and reliefs sought in the originating summons of the claimant, whether this suit raises substantial dispute of fact or substantial dispute of fact is likely to be involved? I consider the two questions raised above as preliminary jurisdictional issues which should be dealt with by the court before proceeding further if the hurdles posed by these notice of preliminary objection are successfully crossed or overcomed. In determining the issue of jurisdiction, it is the claim endorsed on the writ or stated in the statement of claim that will be considered, not the facts averred in the statement of claim or the affidavit evidence to be relied on by the plaintiff – See the case of Society BIC S.A Vs Charzin Ind. Ltd (Sc) 2014 4 NWLR (Pt. 1398) 497 In other words, my understanding is that jurisdiction is determined by the plaintiff’s claim and not the defence or any other processes. It is the writ of summons and statement which contains the claim before the court that has to be examine in detail to ascertain whether it comes within the jurisdiction conferred on the court by the constitution and/or by statute. Jurisdiction of courts to entertain a suit is based on the statement of claim and the relief sought therein. See PDP Vs Sylva 2012 13 NWLR (Pt.1316) 85; Osoh Vs Unity Bank Plc 2013 9 NWLR Pt(1358) SC 1 Jurisdiction, in the case of the National Industrial Court is spell out in the constitution of Nigeria 1999 as amended and other subsidiary legislation. Before looking at the claims and the reliefs of the claimant, what does the Public Officers Protection Act say? Section 2(a) of the Public Officers Protection Act (POPA) Laws of the Federation of Nigeria 2004 has this to say: “where any action prosecution or other proceedings is commenced against any person for any act done in pursuance or 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 or complained of or in case of a continuance of damage or injury within three months next after the ceasing therefore……………………………….” In the case of Udo Vs Civil Service Commission Akwa Ibom State and Others 2006 LPELR 11504, it was held that for section 2(a) of the Public Officers Protection Act (POPA) to avail any person, two conditions must be satisfied namely:- (a). It must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of the Law. (b). The act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of any alleged neglect or default in the execution of such law, duty or authority. See the case of Ekeogu vs Aliri 1990 NWLR (Pt.126) 345. The question to be further determine is whether the defendant in this suit i.e the Federal Inland Revenue Service and the Federal Civil Service Commission are public officers or public officers performing public duties within the meaning of the Public Officers Protection Act? In the case of Nwaogwugwu Vs President of the Federal Republic of Nigeria 2007 All FWLR (Pt. 389) 1327 at 1358 and Ibrahim Vs JSC Kaduna State 2002 15 NWLR (Pt. 791) 454. The Supreme Court held that the word “any person” in section 2(a) of the Public Officers Protection Act Law of Federation of Nigeria (LFN) 2004 is not limited to human beings or to persons sued in their personal names but also included artificial persons, public bodies or body of persons, corporate or incorporate, statutory bodies or persons. The 1999 Constitution of the Federal Republic of Nigeria (as amended) has at section 318 thereof defined Public Service of the Federation and Public Service of the State. However in the fifth schedule, Part I paragraph 19 of the said constitution, public officer is defined as a person holding any office as specified in Part II of that schedule. A careful look at this fifth schedule Part III of the 1999 constitution of Nigeria shows that the 1st and 2nd defendants in this suit are contemplated under paragraph 10. Consequently, I hold that the defendants are public officers within the meaning ambit and context of the Public Officers Protection Act LFN 2004. Now let me consider the claim and reliefs of the claimant as contained in his originating summons. 2. THE CLAIMANT SEEKS THE FOLLOWING RELIEFS (a). A DECLARATION that upon the decision of the Supreme Court in CBN Vs IGWILO (2007) 4-5 SC 154 the Claimants appointment with the First Defendant enjoys statutory flavour. Consequently, the First Defendant cannot lawfully terminate the appointment of the Claimant without full compliance with the provisions of Chapter 3 of the Public Service Rules, 2004 and the Part V of the Guidelines for Appointment, Promotion and Discipline, 2004. (b). A DECLARATION that the First Defendant failed to fully comply with the provisions of Chapter 3 of the Public Service Rules 2004 and Part V of the Guidelines For Appointment, Promotion and Discipline,2004 in purporting to exercise its disciplinary powers over the claimant by reason of the First Defendant’s failure to constitute a Junior Staff Committee and/or to invite the Claimant to appear before it so as to defend the allegations of gross misconduct against him before purportedly terminating the appointment of the Claimant through a letter dated 11th February, 2005 and signed by one A.M. Darmasaude on behalf of the Chairman of the First Defendant. (c). A DECLARATION that the failure of the First Defendant to constitute a Junior Staff Committee and/or to invite the Claimant to appear before it so as to defend the allegations of gross misconduct was in gross violation of the Claimant’s right to fair hearing and rules of natural justice as enshrined in the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999(As Amended). (d). A DECLARATION that the letter dated 11th of February, 2005 and signed by one A.M. Darmasaude on behalf of the Chairman of the First Defendant wherein the Claimant’s appointment with the First Defendant was purportedly terminated is null, void and of no effect whatsoever. 3. IN THE ALTERNATIVE (a). A DECLARATION that the general conduct of the First Defendant is unconstitutionally terminating the Claimant’s appointment, unlawfully withholding his salaries and entitlements, flagrantly breaching of the conditions of service of the Claimant and his right to fair hearing, was in bad faith, arbitrary, callous, intolerable, oppressive, unreasonable and amounted to repudiatory behaviour on the part of the First Defendant, thus entitling the Claimant to a claim of wrongful dismissal from the services of the First Defendant. 4. UPON THE PREMISES OF THE FOREGOING, THE CLAIMANT SEEKS THE FOLLOWING ORDERS, JOINTLY AND SEVERALLY AGAINST THE DEFENDANTS a. AN ORDER setting aside the purported termination of the appointment of the Claimant with the First Defendant, (Federal Inland Revenue Service) as contained in the First Defendant’s letter dated 11th of February, 2005 and signed by one A.M. Darmasaude on behalf of the Chairman of the First Defendant. b. AN ORDER compelling the First Defendant to forthwith recall and reinstate the Claimant to his position with the First Defendant without loss of status, years of service, promotions and emoluments. c. AN ORDER compelling the First Defendant to forthwith pay the Claimant special damages in the sum set bellow: (i). PARTICULARS OF SPECIAL DAMAGES Salaries, bonuses, allowances due and accruable to the Claimant as a Grade 04 officer from June 2004 till judgment and/or reinstatement. (The First Defendant are given notice to produce at the hearing a written break down of the salaries, bonuses, allowances, entitlements and promotions which were due and accruable to the Claimant from June 2004 till judgment and/or reinstatement) AN ORDER that the First Defendant pays the Claimant the sum of N20, 000,000.00 (Twenty Million Naira) as Exemplary Damages. IN THE ALTERNATIVE TO 4(b) AND AS A CONSEQUENCE 3(a) ABOVE: a. AN ORDER that the Defendants pay the Claimant the sum of N15,000,000.00 (Fifteen Million Naira) being compensation for wrongful termination of the Claimant’s appointment with the First Defendant, loss of salaries, increments, allowances and entitlements for unexpired years of service. b. AN ORDER for the payment the sum of N10, 000,000.00 (Ten Million Naira) as damages for loss of pension and gratuity. c. AN ORDER that the defendants pays the Claimant the sum of N5, 000,000.00(Five Million Naira) being cost (solicitors fees) incurred by the Claimant in pursuing this action. AND FOR SUCH ORDERS or further orders as the court may deem fit to make in the circumstances of this case. In the 2nd, 3rd and 4th questions raised for determination in this suit, the claimant stated that his appointment was terminated on the 11th of February 2005 in a letter signed by one A.M Darmasaude on behalf of the chairman of the 1st defendant. The claimant repeated the same fact in his reliefs (b), (c) (d) and alternative reliefs 3(a). By paragraph 11 of his affidavit of the originating summons, the claimant stated thus; “that almost after seven months of the suspension of my appointment by the first defendant, rather than the much awaited invitation to appear before the Junior Staff Committee, the first defendant served me a letter dated the 11th of February 2005 signed by one A.M. Darmasaude on behalf of the chairman wherein the management of the first defendant approved the termination of my appointment following the outcome of the deliberation in respect of the disciplinary case which led to my suspension. A copy of the said letter of termination of appointment is attached hereto and marked exhibit 5” From the claim, reliefs and Exhibit 5 attached to the claimant summons including his affidavit, it is crystally clear that the claimant was terminated on the 11th February 2005 when the Exhibit 5 was handed over to him. This in essence means his right to ventilate his grievances by approaching the court for judicial relief accrued on the date he received his letter of termination indicating the actual date he became aware of the decision of the 1st defendant over the claimants pending disciplinary case of gross misconduct. The claimant filed this action on the 10th of December 2012, well over 6 years after the accrual of right of action. Counsel to the claimant, Mr. Egbune has argued that the Public Officers Protection Act is not applicable to breaches of contract, claims for work done and recovery of land. This is the position of the law as decided in FGN Vs. Zebra Energy Ltd (Supra) but the case of the claimant do not border on any of these exceptions. The issue of breach of contract refers to commercial contract of buying and selling, supply of goods etc and not on employment matters. Furthermore, this case is not one of recovery of land. The work or labour done element in the relief of the claimant is an ancillary claim to the main claim of termination of employment. Claimant counsel also urged the court to be persuaded by the decision of this court in Jonathan Ossoffa Vs. FIRS and Another. I am afraid, this case cited is not on all fours with the present case of the claimant. In Ossoffa’s case, the officer who signed the letter of disengagement had no power whatsoever to do so. He was never delegated to do so and he had no constitutional duty to do so. This means, he acted outside the colour of his office as decided by Justice Galadima in A.G. Rivers Vs. A.G. Bayelsa (Supra). In this present case, the claimant who is on level 4 can be disciplined by the chief executive of his office and such can be delegated as conceded in the affidavit of the claimant and as stated in Rule 030103 of the civil service Rules. The 1st defendant in this case has not acted outside the colour, scope or statutory or constitutional duties. This exception therefore is not available to the claimant. In the case of Sulgrave Holdings Incorporated Vs. FGN 2012 17 NWLR Pt. 1329 309 Justice Suleiman Galadima who incidentally gave the lead judgment in A.G. Rivers Vs.AG Bayelsa also gave the lead judgment in this case as follows; “My understanding of this provision is that the Act gives the parameter within which a public officer can take protection under the Act. As long as the public officer acts is the usual function of his office, whether he does it correctly or wrongfully; he is protected by this section. It is not open to the court to pry into his conduct in carrying out his assignment in order to determine whether the Act applies or not. However, as I have said, where a public officer on a frolic of his own does an act which is not part of his normal duties or has nothing to do with his official functions, that is, he acts outside the colour of his office, he cannot claim protection under the Act” Can we then say that A. M. Darmasuade the officer in charge of Discipline in the 1st defendant office has nothing to do with discipline or it is not in his normal duties to sign letters of disengagement of junior staff? The defendants in this suit acted within the confirms of their office. The action taken by the claimant outside the prescribe period was ill tuned as same was clearly statute barred. The claimant had slept on his right and have only himself to blame for being so caught by the provisions of this Act. As John Afolabi Fabiyi JSC put it in the case of Sulgrave Holdings Incorporated Vs. Federal Government of Nigeria (FGN). (Supra) “This is a non-claim statute that has become a mere shell which is of no utility value to the claimant; it’s worth fades into oblivion.” I so hold. From all what I have said so far, there is no need for the court to proceed further to consider the issue of whether or not this suit ought to be commenced by writ or originating summons neither do I have the power to proceed further to consider the merit of the originating summons as constituted since the entire action is statute barred. In the circumstances, this suit is struck out and I make no order as to cost. ------------------------------- Hon. Justice P.O Lifu (JP.) Judge