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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge FRIDAY 20th DECEMBER, 2013 SUIT NO: NICN/ABJ/139/2013 Between: Barrister Mohammed Kudu Nadodi and 75 Others Claimant AND Honourable Minster Federal Capital Territory and 2 Others Defendant REPRESENTATION The 1st 2nd, 3rd , 4th , 5th , 6th , 7th , 8th , 9th , 10th , 11th 13th , 14th , 15th , 17th, 19th, 20th , 21st , 22nd, 23rd , 24th , 25th , 27th, 28th ,29th , 31st, 34th , 36th , 37th , 38th , 39th , 40th , 41st , 42nd , 45th , 46th , 47th , 50th , 52nd , 53rd , 54th , 55th , 56th , 57th , 58th, 59th , 60th , 63rd , 64th , 68th , 69th ,73rd , 74th , 75th, are present while the rest of the claimant s are absent , The defendants are absent Sola Egbeyinka Esq. for all the claimant /respondent; Tunde Nordi Esq. for the Defendant/ Applicant RULING By a notice of preliminary objection dated and filed on the 29th of October 2013, the defendant /applicant prays the court to dismiss the claimant/ respondent’s suit on the following ground. (a) The action is premature and incomplete not having been preceded with the procurement of leave of court before the filing of same. (b) The action is also statute barred, not having been filed within the three months period of Grace allowed by the enabling statute. (c) The Honourable court lacks the jurisdiction to try this matter due to non – compliance with enabling statute which lay down a time line within which this action can be filed. The application is supported by a seven paragraph affidavit and a written address wherein the applicant is calling upon the court to determine the question of whether the application of the defendant/applicant can be validly considered at this stage of proceedings or whether it has been validly brought before the court. It is the contention of the counsel that any application capable of terminating the proceedings can be brought at an interlocutory stage to safe time and cost. He cited the case of Alhaja Silifat Ajilowura Vs. Taofik Dasu and Others which counsel said was decided on 7th July 2006 by the Supreme Court f Nigeria but did not supply the necessary citation. Counsel submitted further that this suit is incompetent and pre-mature due to the fact that it did not comply with section 17 of the National Industrial Court Act and order 22 (3) of the rules of this court which essentially borders on judicial review procedures. Consequently, counsel submitted that since leave of court was not sought for and granted before this suit is brought to challenge an administrative action. It is therefore incompetent and premature. Counsel referred the court to the case of Patrick Izuagbe Okoto and Another Vs. Union Bank Ltd 2004 I SC Pt 1 at 30 counsel contended that this action is also statute barred on the ground that (1) The suit was instituted in this court more than eight years after the cause of action arose (2) That the claimant have been paid their severance and disengagement benefits of which they collected after their retirement (3) That after such movies were collected from the defendant by the claimant, there was no communication or correspondent between the two parties thereafter. Counsel submitted further that since the claimant has not complied with the provision of section 2 (a) of the public officers protection Act Laws of the federation of Nigeria 2004 particularly laws of the FCT, the action should be dismissed as the case is a nullity. Counsel cited the cases of EIMSKIP Limited Vs.Exquisite industries Nig Ltd (2003). I Sc Pt. 11 94 at 112. GraceJack Vs. University of Agriculture Markudi 2004 I SC Pt. 11 100 at 144. Counsel also urge the court not to entertain this suit for lack of jurisdiction. He contended further that paragraphs 14, 15, and 20 and 23 of the claimants/respondents counter affidavit offends section 115 (3) of the 2011 evidence Act. Counsel also submitted that the only area of exception to the application of public officers protection Act is where there is a continuous injury. Counsel urge the court to look at the claims and the affidavit of the claimant/ respondent to come to the irresistible conclusion that the action is statute barred since they have admitted that the cause of action accrued between 2004 to 2007 during the reign of chief olusegun obasanjo. In opposing the defendant/ applicants notice of preliminary objection, the claimant /respondent filed a 31 paragraph counter affidavit and a written address wherein they formulated five issues for determination; (1) Whether the public officer protection Act Cap P. 41 Laws of the Federation of Nigeria 2004 is applicable to this suit as presently constituted by the claimant/respondent being contractual in nature and labour related. It is the respectful submission of the claimant /respondent counsel Mr. Egbeyinka to the fact that the public officers protection Act is inapplicable to this case on the ground that the claimants case being labour related is contractual in nature and as such the provision of public officers protection Act are not applicable to contracts. He call in aid the case of Federal Govt. of Nigeria and Others Vs. Zebra Energy Ltd (2003) 3 WRN I at 11 – 12, Ibrahim Vs. Judicial Service Committee 1999 14 NWLR (Pt. 584 ) I , Okeke Vs. Baba 2000 3 NWLR Pt 650 644 at 647. Counsel further argued that the provision of the public officers protection Act do not in any way apply to contract of employment. Counsel further referred the court to the cases of Simeon and 183 others Vs. NS and CDC in suit No NIC/ABJ/141/2012; Abiodun and Others Vs. The governing counsel Oyo State College of Education Oyo and I other 2009 NLLR Pt. 62 316 at 347; NIIA Vs. Ayanfalu 2007 NWLR Pt 1018 at 246- 263 Kasau Busari and Others Vs. Minister of Defence and Another FHCT/ABJ/CS/184/07. Counsel also urge the court to adopt a liberal, ordinary, grammatical and true meaning to the public officers protection statute. In this wise, counsel posited that since only 65 persons were reabsorbed into the employment of the defendant/applicant after series of complaint as a result of the wrongful and illegal retirement it should be interpreted and brought under the category of continuous injury. Counsel submitted that the refusal or the delay in absorbing the claimants into the service of the defendant is a continuous injury which has not abated until it is done. Counsel referred the court to the case of Alhassan Vs. Aliyu and Others 2009 LPELR 8340 Paragraph F-G. In another vein, counsel urged the court to regard the absorption of 65 staff among the defendant through picking and choosing as discriminatory, unjustified as it was done in bad faith and with malice. Counsel referred the court to the case of Affoboche Vs. Ogoja local Govt and another 2001 36 WRN I at 7; Okoh Vs. the Nigeria Navy2007 25 WRN 46 at 52. Counsel further submitted that the issue as to whether administrative and prerogative remedy ought to have been used rather than writ of summon or complaint is of no moment as the appropriate form of commencement where issue of damages, reinstatement are involved as in this case have been used. Counsel cited the case of Young Vs. Cross River State Judicial Service commission 2009 17 WRN 51 at 53 -54. 2) Whether the cause of action in this suit had arisen by virtue of the document referenced: FCTA/E and T/I/S. 233 dated 13th June 2007 titled Re: Review of Appeals of disengaged staff on the 13th day of June 2007? Counsel submitted that the discriminatory content of the letter dated 13th June 2007 reference No. FCT A /E & T/ I/S. 233 wherein 65 staffers were re instated gave rise to this suit which was instituted on the 13th of June 2007. Counsel argued that the accrual of cause of action will mark the date of compilation for the propose of determining whether the suit is statute barred or not; counsel in this context submitted that the originating processes and the claims of the claimant are what the court ought to look at in that vein. He cited the cases of Olumide Vs. Aliu 2009 23 WRN 13 at 19 -20. Egbe Vs. Adefarasin 2002 14 WRN 57 Moumah Vs. Spring Bank Plc 2009 6 WRN 118 at 121. It is the contention of claimant counsel that since the cause of action arose on the 13th of June 2007 and the case was filed on 13th of June 2013, couple with the fact that the claimants were invited to the senate committee on public petition and the fact that contract of employment has a limitation period of six years, this suit cannot be statute barred. (3) Whether this Honourable court is competent to assume jurisdiction over this suit? Counsel Submitted that since the suit of the claimant /respondent is labour related and it is instituted or initiated by due process with compliance with all the statutory provisions, this court is competent to entertain a competent suit. Counsel cited the case of Anyanwoko Vs. Okoye 2010 18 WRN 34 at 41 Madukolu Vs. Nkendilim 2001 46 WRN I at 2. (4) Whether the non filing of a memorandum of appearance by the defendant /applicant in this suit is fatal to the hearing of this notice of preliminary objection? Counsel submitted that failure of the defendant /applicant to file a memorandum of appearance in this suit deprives them the standing to raise any preliminary objection as filing a memo of appearance is a mandatory requirement of a statute. Counsel cited the case of Wudi L J.P Vs. Aliyu 2004 14 WRN 127 at 130. Cooperative and Commence Bank Nig Plc Vs. A.G. Anambra State and Others 1992 8 NWLR Pt. 261 at 556. , Nuhu Sani Ibrahim Vs. Independent National Electoral Commission and Others 1999 8 NWLR Pt. 614 334 at 352. (5) Whether the 5 paragraph affidavit of Joshua Achor, in support of the notice of preliminary objection dated 6th day of July 2013 but filed on the 6th day of August 2013 is not offensive to the provision of section 115 (4) of the evidence Act. Counsel urged the court to resolve that the five paragraph affidavit of one Joshua Achor, who is a para legal associate in the integrity partners has no probative and evidential value as it amount to hear say not being competent to depose to facts about the retirement of the claimant/respondent. Moreover, the defendant did not state the source of his information in accordance with the provision of section 115 (4) of the evidence Act 2011. Counsel cited the case of Fashawe Vs. A.G. Fed. 2007 8 WRN 125 at 145. Counsel finally urged the court to discountenance the preliminary objection and dismiss it accordingly. I have thoroughly and painstakingly gone through the processes of the claimant in this case and the submissions of the respective position. The central issue in the objection of the defendant/applicant is the jurisdiction or otherwise of this court to entertain the claimant/respondent suit as constituted. It is the claim in any particular case that determines jurisdiction. In other words, it is the claimants claim that clothes the court with or denies it the jurisdiction to adjudicate on a matter before it. Whatever is brought before the trial court by the claimant for determination alone will determine whether or not a trial court is competent to entertain or adjudicate on the matter. The court should not examine the case of P & C.H.S Co. Ltd Vs. Migfo Nig Ltd 2013 3 NWLR (Pt 1333) at 555. By the complaint of the claimant/ respondent filed on the 4th of June 2013, the endorsement reads (1) A declaration that the retirement of the claimants by the defendants from the public service of the federal capital territory Abuja is irregular, mala fide, illegal, unlawful as the letter of retirement issued the claimants herein negates the intent, substance and purports of a letter officially released by the FCT (office of the Minister) with reference particulars FCT/COS/SGM/05/43/16 dated 5th October 2005 Titled Re: Staff Right Sizing. (2) A declaration that the decision of the defendants to reinstate 65 disengaged staff in the Federal Capital Territory administration as well as few other retired staff in the (Sic) and few others in the FCT administration Abuja excluding the claimants from the said re-instatement exercise is highly discretionary and as such, a gross violation of the claimants fundamental Human Right to freedom from discrimination as guaranteed by the provisions of section 42 of the 1999 constitution of the Federal Republic of Nigeria (As Amended) Third alteration Act Article 2, 12, 19 of the African charter on Human and people’s Rights Cap A laws of the Federation of Nigeria 2004. (3) An order of this Houourable court for a mandatory injunction compelling the defendants to reinstate immediately all the claimants in this suit to their various official positions as at the time of their irregular, illegal and unlawful retirement form the employment of the defendants. (4) An order of this honourable court compelling the defendants to pay over to the claimants all salaries, arrears of rents, allowances due to them as from the date of their irregular retirement from the employment of the defendants up till the date of their reinstatement by the defendants From the above reliefs being sought by the claimants in this court, it is very clear that is not bases on order 22 of the NIC rules 2007 neither does it border on section 17 of the NICA 2006. In other words, the claim of the claimant is not that of judicial review through mandamus, prohibition or certiorari which prescribes three months time limit. The argument of the defendant/applicant in this respect is highly misconceived it therefore lacks merit and I so hold. The defendant /applicant also contended that the non – procurement of the leave of the court before bringing this action renders this action in competent and unsuitable. Assuring without conceding that this action is brought under the judicial review powers and jurisdiction of the court wherein prerogative orders can be sought, no leave of court is required for that purpose as order 22 (3) of the NIC Rules 20007 has this to say. 3 (1) An application for Judicial review shall be brought within three months of the date of occurence of the subject of the application and no leave shall be required for that purpose The second issue canvassed by the defendant applicant borders squarely on the application of the public officers protection Act Cap P. 41 Laws of the Federation of Nigeria 2004. Section 2 (a) of that law says “ Where any action, prosecution, or other proceeding 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 in the execution of any such Act , law, duty or authority, the following provisions shall have effect” “ 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 or complained of , or in case of a continuance of damage or injury, within three months next after the ceasing thereof ……….” In the case of Udo Vs. C.S.C. Akwa Ibom State and others 2006 LPELR 11564, it was held that for section 2 (a) of the public officers protection Act 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 offer or a person acting in the execution of public duties within the meaning of that 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 an alleged neglect or default in the execution of such law, duty or authority see also the case of EKEOGU Vs. Atiri (1990) NWLR (Pt. 126) 345 By the authority of Federal government of Nigeria Vs. Zebra Energy Ltd 2002 18 NWLR (Pt 798) at 162, public officers was held to includes a natural person holding public office, sued in their personal names, it also extends to public bodies, artificial persons, institutions or persons sued by their official names and titles. The word “any person” in section 2 (a) of the public officers protection Act is not limited to human beings or to persons sued in their personal names but also includes artificial persons, public bodies or body of persons, corporate or incorporate, statutory bodies or persons as held in the case of Nwaogwugwu Vs. President, Federal Republic of Nigeria. The defendants in this case are (1) Honorable minster, FCT (2) Federal Capital Development authority (3) Abuja Environmental Protection Agency. The new paragraph above mentioned defendants sued in this case therefore falls squarely under the definition of public officers for the propose and within the context contemplated by section 2 (a) of the Public officers protection Act. Moreover, the activities of the defendants complained about in the suit, I.e the retirement and the assurance of retirement letter and all the associated exhibits in this suit were done in the course of official duty within the confines of public duty. The originating processes were filed in the registry of this court on the 4th of June 2013. The claimants/respondent in their copious statement of fact filed along with their complaint avered that they were all retired variously between 2004 and 2006 during the chief Olusegun Obasunjo administration as president and commander in Chief of the Federal Republic of Nigeria. In paragraph 8 of the counter affidavit of the claimant/respondent in opposition to the defendant applicant notice of preliminary objection, the claimant deposed as follows “That paragraph 4(a) of the affidavit in support of the notice of preliminary objection is true” And what does that paragraph 4 (a) says 4 (a) “The plaintiff herein were all retired from the services of the defendant at various times between 2004 and 2006. Moreover by paragraphs 10, 11 and 25 of the claimants/respondent counter affidavit to the preliminary objection, the following facts were deposed to: 10 “That the claimants herein including myself were irregularly retired from the employment of the defendants contrary to the Federal Republic of Nigeria Policy to professionalize the civil service system in Nigeria during the civilian administration of president Olusegun Obasanjo” 11 “That the claimants were compelled to receive entitlements from the defendants upon being retired from the civil service prematurely” 25 “That the cause of action in this suit arose as a result of the circular dated 13th June 2007 referred to in paragraph 23 above as Exhibit “I” From the above evidence, it is very clear that the claimants were retired from public service at least 6 years ago, any how you look at it; they have equally collected their retirement entitlements from the defendant. In my view, time begin to run when all facts have happened which are material to prove the claimants case to entitle them to succeed. In this wise, time begin to run when the claimants were given letters of termination or retirement as in this case, see the cases of Unilorin Vs. Adeniran 2007 NWLR (Pt. 1031) at 498. Odutola Vs. Unilorin 2005 All FWLR (Pt. 245) at 592 I therefore hold that the date of accrual of the cause of action marks the commencement of computation. The claimant/respondent counsel contended vehemently that the public officer protection Act do not apply to contract. I disagree with this position when it is generalised. It does not apply to commercial contracts as held in the case of Zebra energy Ltd Vs. FRN on the revocation of oil prospecting license. It was also contended that since the defendant did not file a memorandum of appearance, he cannot raise objection on point of law such as objection on jurisdiction. It is trite law that issues of jurisdiction can be raised at any time of the proceedings even at the appellate level. A court that do not possess jurisdiction will be acting in vain, no matter how well conducting the proceedings are. This is trite law. It was also further contended that the continuous refusal of the defendant to reinstate the claimant a continuous injury. The contract of employment was brought to an end and the claimant collected their retirement entitlements. I can not see where the continuous injury comes in here within the exception contemplated by the public officers protection Act. I cannot also see how the defendants acted in bad faith or outside the colour of their office as no particulars of bad faith or malice have been established or furnished within the exception see A.G. Rivers State Vs. A.G. Bayelsa State 2013 3 NWLR Pt. 1340 123 at 148 – 150 paragraph F-A. Assuming again without conceding that employment contract, has a limitation period of six years as canvassed by the claimants counsel, from the originating processes of the claimant, they are still caught up by the limitation law governing contracts and other related subject matters. In the case of A.G. River State Vs. A.G. Bayelsa Supra the Supreme Court has this to say at page 144 of the judgment, paragraph E-G. “The public officers (protection) Act is a statute of limitation. The general principle of law is that where a statute provides for the institution of an action within a prescribe period, the action shall not be brought after the time prescribe by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law” the 4th relief of the claimants which borders on payment of arrears of salaries, emoluments arrears of rents and other Sundry allowances is of no moment because it is predicted on reinstatement. It is very unfortunate that the claimant withdrew their earlier suit instituted in 2004 only to come back to the court after about nine years thereafter to assert their rights when the law prescribe only three months limitation for such aggrieve persons to ventilate their grievances, assert their right of action, right of enforcement and the right to judicial relief. See the cases of Akeem Vs. Uniibadan 2003 10 NWLR (Pt. 829) at 584 Eze Vs. Okechukwu 2002 18 NWLR Pt. 799 at 348. This brings again into focus the need to renew the call for the urgent review of the public officers protection law. A situation whereas piece of legislation enacted erected principally by the colonial masters to protect their variegated economic interest with a view to perpetuating their exploitative tendencies should have no place in our statute book decades after our independence. This may perhaps get to the ears of the law reform commission and other social justice crusaders. However, this is the law to day and I am bound by precedent. Until the expected change comes, our courts shall continue to apply it when the need arises. It is on this note that the duty on counsel becomes anerous, very weightier and heavier in terms of the quality of legal counsel being given to their clients to avoid unnecessary waste of time and material resources. On the strength of all what I have said in this judgment, I hold that this suit is statute barred by the provision of the public officers protection Act, Laws of the federation of Nigeria 2004 and is accordingly dismissed. ----------------------------- Hon. Justice P.O Lifu (JP.) Judge