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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Monday 3rd November, 2014 SUIT NO: NICN/ABJ/356/2013 Between: Ibinabo Ben Kalio Claimant And Nigeria Customs and Exercise Defendants REPRESENTATION Parties absent : U.C. Opara Ugo Esq. appear for the claimant; M.L. Halilu Mrs. For the defendants. RULING By a Notice of preliminary Objection dated and filed on the 28th of March 2014, the defendant raised an objection to the jurisdiction of the court on the following grounds (1) The claimants action against the defendant is statute barred by virtue of section 2 (a) of the public officers protection Act Cap 379 (SIC) LFN 2004 (2) The defendant / applicant is a non juristic person as such cannot sue or be sued. The Notice of preliminary Objection (NPO) is supported with a written address wherein counsel to the Lawunmi Halilu formulated two issues for determination mainly : (1) Whether the claimant respondent’s action against the defendant / applicant is statute barred by virtue of the provision of section 2 (a) of the public officers protection Act LFN Cap P41 2004. b) Whether the defendant /applicant is a juristic person that can be sued. On issue one formulated for determination by this court, learned counsel referred the court to the particulars of claim of the claimant where allowances, salaries and emoluments are claimed in arrears from June 1988 and urged the court to look at the writ and the statement of claim to determine when the cause of action arose. Counsel argued that the cause of action, from paragraphs 9 and 11 of the statement of claim arose in July 1988 while this suit was instituted on the 23rd December 2013 which is clearly outside the 3 months period stipulated by the law. Counsel supported his submissions with the cases of Rayleigh Industries Nig Ltd Vs. Nwaiwu 1994 4 NWLR (Pt. 341) 760 at 771; Fadare Vs. A.G. Oyo state 1982 NSCC 52 at 60. Counsel submitted further that time begin to run when there is in existence a person who can sue and another who can be sued and when all facts have happened which are material to be proved to entitled the plaintiff to succeed. Counsel call in aid of this submission, the cases of Sandra Vs. Kukawa Local Govt 1991 2 NWLR Pt 174, 3789; Solomon Vs. African Steamship Co. Ltd 1928 9 NLR 99; once the action is statute barred, there was nothing to build on it; as any person in the body of the Act means and include both artificial and natural person, counsel contended. He cited the case of Ibrahim Vs. JSC 1998 14 NWLR (Pt 584) I at 32. Mr. Halilu contented further that the public officers protection Act do not prevent a litigant from getting to court to ventilate his grievance but such action in court must be done within the period of three months from the date of accrual of right of action. The claimant, he posited brought this claim outside the three months period allowed by law and therefore, his action is statute barred by the authorities of Bassey Vs. Minister of Defence 2000 All FWLR Pt. 343, 1799 at 1806; Yare Vs. National Salaries Wages and Income Commission 2013 LPELR 205 20 SC; Fred Vs. Adefarasin (No.2) 1985 INWLR Pt. 3 549. On issue 2, counsel submitted that this court can only assume jurisdiction when right parties are before the court. Counsel cited the case of Green Vs. Green 1987 3 NWLR Pt. 61 at 480. Counsel further stated that the defendant in this suit is not known to law being not a juristic person by virtue of section 4 (2) (b) of the Nigerian Custom Service Board Cap N100 LFN 2004. Counsel also urged the court to hold that this suit is in breach of section 3 of the Nigerian Custom Service Board Act Cap N100 LFN 2004. Counsel cited the cases of Fawehinmi Vs. NBA No. 2 1989 2 NWLR Pg 558 at 595; Management Enterprises Limited Vs. Otusanya 1987 2 NWLR 179; Njamanze Vs. Shell BP Port Harcourt 1966 I All NLR 8 Okechukwu and Sons Vs. Ndah 1967 NMLR 368; Innoson Nig Ltd Vs. Nigeria Custom Service Unreported suit No. FHC/L/CS603/2006 Ruling delivered by Shakarho J on 20/01/2010. Nwabueze Vs. Nipost 2006 8 NWLR Pt. 983 page 480 at 529. Counsel submitted further that the proper person to be sued is the Nigeria Custom Service Board established under section 1 (2) and section 3 and 4 of the Nigeria Custom Service Board Act Cap N100 LFN 2004. Counsel urged the court to strike out the name of the defendant as it is a non juristic person. In his response to the Notice of Preliminary Objection (NPO) of the defendant, the claimant counsel U.C. Oparaugo Esq. filed a written address dated 30th April 2014 and formulated two issues for determination namely; (1) “Whether pursuant to the provision of section 2 (a) of the public officers protection Act LFN Cap P41 LFN 2004 the Honourable Court has jurisdiction to entertain and determine this suit;” (2) “Whether the defendant /applicant is a justice (SIC) person that can be sued”. On issue one, Mr. Oparaugo submitted that issue of contract of employment are not covered by the provision of public officers protection Act Cap P 41 LFN 2004. Counsel call in aid the cases of FGN Vs. Zebra Energy Ltd 2002 18 NWLR Pt. 798 at 162 at 197; CBN Vs. Adedeji 2004 13 NWLR Pt. 890 P.226 at 245. It is also contended that exception exist when it comes to actions for recovery of land, breaches of contract, claims for work and labour done. Counsel submitted also that the claimant have been suspended since 9th October 1990 till date without payment of salary and allowances. Counsel submitted further that all the authorities cited by the defendants counsel are not relevant as the action in this suit are not against any public officer as an individual but against an Institution Nigerian Custom Service; Counsel cited the case of Onyejekwe Vs. The Nigeria Police Counsel 1996 7 NWLR (Pt. 463) 704. Counsel also cited the case of Ebohan Edo State 1997 5 NWLR (Pt 505) 298; Ar Alakya Vs. Medical Disciplinary Committee 1959 4 FSC 38 Bangboye Vs. Unilorin 1999 10 NWLR (Pt 801) 233; sections 13, 14, 15 of the National Industrial Court Act (NIC) 2006 and concluded that the suspension of the claimant for so long is against natural justice. On issue two, counsel submitted that the Nigeria Custom Service is a juristic person having been created by statute and is an agency of the Federal Government. Counsel relied on section 254 (c) (I) (a) (g) and section 251 of the 1999 constitution as amended. It is the further contention of counsel that the Nigerian custom service board being a legal entity can only act through agents under its services and as such the service is an agency which activity as human agents binds the board. Counsel stated that the cases cited by the defendant in this respect are not relevant. Counsel contended that the suspension of claimant for 26 years i.e since June 1988 without pay is unjust and inhuman. Counsel urged the court not to allow the technical issues raised by the defendant to defeat the justice of this case as the case should be allowed to proceed to trial in the interest of justice. Counsel cited the cases of Eco drill Nig Ltd Vs. Ofotokun 2005 16 NRN 80-89; AG. Bendel Vs. Aideyan 1989 4 NWLR Pt. 117 646. Counsel urged the court to be more interested in substance than in mere form. Counsel cited the case of Usikaro Vs. Itshekiri Land Trustees 1991 2 NWLR Pt. 172 156 at 172 -173. Counsel urged the court finally to dismiss the preliminary objection. I have gone through the prayers and the written address of the defendants and that of the claimants submissions. The central issue in the Notice of Preliminary Objection (NPO) of the defendant is the jurisdiction or otherwise of this court to entertain this suit. Jurisdiction of court to entertain a suit is based on the claimants averments in the statement of facts /claim and the reliefs sought therein. See the case of Osoh Vs. Unity Bank Plc 2013 9 NWLR Pt. 1358 SC I. It is the claim in any particular case that determines the jurisdiction of a particular court. It is the claimants reliefs or prayers that cloths the court or denies the jurisdiction to adjudicate on a matter before it. Whatever is brought before a 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 defence at all even though the defence may have been filed in accordance with the rules of court. See also P and CHS Co. Ltd Vs. Migfo Nig Ltd 2013 3 NWLR Pt. 1333 at 555. It should also be noted that the statute setting up the court also spell out the jurisdiction of the court. In the case of the National Industrial Court, it is the National Industrial Court Act 2006, the constitution of the Federal Republic of Nigeria 1999 as amended and other subsidiary legislation. From the available facts and the applicable law, I hereby formulate a sole issue for determination as follows; Given the state of pleadings of the claimant and the applicable law, is this suit caught up by the public officers protection act and competent against the defendant as constituted? Before looking at the reliefs of the claimant and the party sued as defendant in this case, what does the public officers protection Act say? Section 2 (a) of the pubic officers protection Act (POPA) LFN Cap P 41 2004 has the following provisions. “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 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 complain or in case of a continuance of damage or injury within three months next after the ceasing thereof…….” In the case of Udo Vs. Civil Service Commission Akwa Ibom State and Others 2006 LPELR 11564, it was held that for section 2 (a) of the public Officers Protection Act (POPA) to avail any person, two condition 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 an alleged neglect or default in the execution of such law, duty or authority. See also the case of Ekogu Vs. Atiri 1990 NWLR (Pt. 126) 345. The question to be further determine is whether the defendant in this suit i.e the Nigerian Custom Service is a public officer for the purpose of the application or otherwise of the public officer protection Act. In other words, is the Nigeria Custom Service a Public Officer Performing Public duties? In the case of Ibrahim Vs. Judicial Service Commission of Kaduna State (Supra) it was held by the Supreme Court of Nigeria that the word “any person” in section 2 (a) of the Public Officers Protection Act is not Limited to human being or to persons sued in their personal names but also include artificial persons, public bodies or body of persons, corporate or incorporate, statutory bodies or persons. The defendant in this case being a legal entity who is sued as a corporate person properly or improperly is therefore contemplated under the public officers Protection Act. In fact, section 6 of the Nigerian Customs Service Act Cap N100 LFN 2004 has the following provision which is almost in pari materia with section 2 (a) of the public officers protection Act which is the law under consideration. Section 6 says:- “Notwithstanding anything to the contrary contained in other law, no action shall be instituted against the board in respect of any act, neglect or default alone or omitted to be done by any officer, servant or agent of the board in his capacity as an officer, servant or agent of the board with regard to the regulation made pursuant to section 9 (1) (b) of this Act unless it is commenced within three months next after the act, negligence continuing damage or injury, within three months next after the ceasing thereof”. By this provision, it is crystally clear that any suit against the Board of Nigerian Custom Service has a limitation period of three months. Furthermore section 9 (i) (b) which is referred to by section 6 of the Act talks about staff regulations on appointment, promotion, disciplinary control etc of which issue of suspension, the subject matter of this suit is covered as suspension of a staff is part of disciplinary measure or control. Now, let us look at the relief of the claimant as stated in his complaint and his statement of facts (1) An order of this honourable court declaring the purported suspension of the claimant as illegal, mischievous, null and void and an infringement on the right of the claimant. (2) An order of this honorable court compelling the defendant to cancel the purported and malicious suspension and call back the claimant without any loss of salaries and allowance together with his promotion from the period he was employed. (3) An order of this Honourable court directing the defendant to pay the claimant all his salaries, allowances and other entitlements accruable to him with all his promotion /steps from June 1988 till date. (4) And any order or further order as this Honourable court shall deem fit to make in the present circumstances. From the above reliefs before the court, the claimant, it appears have been on suspension for the past 26 years since June 1988. The letter of suspension dated 9th October 1990 have been written and kept on his file. Paragraph 22 of his statement of claim reads; “the claimant avers that on getting to Abuja, he complained of this humiliation and a suspension letter dated 9th October 1999 which was not served on him but was found in his file”. This suit was commenced on the 23rd December 2013, about 24 years after the suspension was effected on the claimant. Section 2 (a) of the public officers protection Act Cap P 14 LFN 2004 and section 6 of the Nigerian Custom Service Board Act Cap N100 LFN 2004 contains provision on limitation of action, which is three months period. The first relief of the claimant is a declaratory one bordering on his suspension. Section 6 of the custom Act talks about “no action” and “any act”. The right of action in this case accrued to the claimant when he saw the letter of suspension in 1990. In my considered view, the right of action became abated after three months from October 9th; three months from October 9th 1990 i.e January 8th 1991 . Moreover, I have seen, by the provision of section 6 (2) of the Nigerian Custom Services Board Act Cap N100 LFN 2004 that no pre-action notice was issued and served before the commencement of this action. The section provides; “No suit shall be commenced against the board before the expiration of a period of one month of intention to commence the suit shall have been served on the board by the intending plaintiff or his authorized agent” There is no evidence of such pre action notice being served on the defendant by the claimant or his authorized agent before the institution of this suit before me. Apart from that, there can be no doubt that the claimant instituted this suit after three months from the date of accrual of the right of action. He has slept on his right and have only himself to blame for being so caught by the statute of limitation and as the Supreme Court put it in the case of Sulgrave holdings Incorp. Vs. FGN 2012 17 NWLR Pt. 1329 309 at 345. “This is a non claim statute that has become a mere shell which is of no utility value to the claimant. Its worth fades into oblivion”. The claimant counsel had argued that the statute of limitation like the public officers protection Act is not applicable to contract of employment. In his submission, he referred to the case of FGN Vs. Zebra Energy Oil Ltd. A careful reading of the judgment reveals that commercial contracts which borders on specific contracts on sale of goods do not come under the protection provided by the statute of limitation under consideration. The public officers protection Act is applicable to the contract of employment as decided in Sulgrave Holding case (Supra) by the Supreme Court. Assuming I am wrong, let me proceed to consider the second leg of the objection. On the issue of legal personality of the defendant, section I of the Nigerian Custom Service Board Act has the following provision: “There is hereby established under the control of the Federal Ministry of Finance, a board to be known as the Nigerian Custom Service Board (in this Act referred to as the Board) which shall be responsible for the administration of the customs and excise management Act” The preamble to the Act states; “An Act to establish the Nigerian Customs Service Board and for matters connected therewith” By section 4 of the Act, the power of the board is stated among others as follows “The board shall have power; (b) to dismiss and exercise other disciplinary control over persons appointed pursuant to paragraph (a) of this subsection” Suspension, is the gravament of the claimant in the main issue of which a declaratory relief is anchored on. The other reliefs are ancillary. The power of the board on issue of disciplinary control includes suspension. Consequently and in accordance with the provision of the quoted portions of the Nigerian Customs Service Law, the board is the legal person in this context. Juristic personality, juridical personality, artificial personality and legal entity is the characteristic of a non-living entity regarded by law to have the status of personhood. They are called juristic persons because it is the law that accords them the status. In certain respect, artificial are equally accorded the status of a person for the sake of ascribing certain rights, protections and obligations under the law. In the context of this suit, the law setting up the Nigerian Custom Services recognizes only the Board as the legal entity that can sue and be sued. Consequently the “Nigeria Custom Service” as sued is not a legal person and I so hold. On the whole and based on my reasoning and conclusion so far, I hold that this court has no jurisdiction as the suit is statute barred. The claimant case is hereby dismissed. ----------------------------- Hon. Justice P.O Lifu JP. Judge