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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 8th NOVEMBER, 2013 SUIT NO: NICN/ABJ/351/2013 Between: Ibrahim Mohammed Dodo Claimant AND The Chairman /Chief Executive National Drug Law Enforcement Agency and Another Defendant PRESENTATIONS: Ibrahim Ainoko Esq. for the claimant /respondent Mike Kassa Esq. for the defendant /Applicant RULING By a motion on notice dated the 17th of June 2013 the defendant /applicants through their counsel sought on order setting down the preliminary objection raised in paragraph 20 of their statement of defence for hearing and dismissing the entire suit of the claimant /respondent on ground of being statute barred. Paragraph 20 of the defendants /applicants statement of defence reads:- 20: “ The defendants shall at or prior to the trial of suit by way of preliminary objection contend that the claimant’s suit is statute barred and ought to be dismissed as this court lacks jurisdiction to entertain the suit” Particulars of objection (a) The claimant’s claim being an action against public officers and a public authority in respect of an alleged default in the execution of their duty or authority i.e termination of the claimant ought to be commenced within 3 months after the termination of appointment. (b) The claimant’s appointment was terminated on the 11th September 2012. (c) This action was commenced on the 24th December 2012, a period of about three months and thirteen days after the termination. (d) By reason of a –c above, this action is statute barred and the court lacks the jurisdiction in this case” By an order of court, this preliminary point of law was set down and argued accordingly. The defendant counsel supported his application with a 4 paragraph affidavit, two exhibits and a written address wherein he formulated three issues for determination. (1) Where this suit is statute barred against the defendants in view of the provisions of section 2 (a) of the public officers protection Act Cap 41 laws of the Federation of Nigeria 2004 (2) Whether having regard to provisions of section 2 (a) of the public officers protection Act Cap P.41, laws of the Federation of Nigeria 2004, the claimant has any enforceable right of action against the defendants and (3) Whether this Honourable court has the jurisdiction to entertain this suit. In arguing the three issues together counsel submitted that time begins to run from the date of termination of the claimants /respondent which is the 11th of September 2012 and since this suit was filed on the 24th of December 2012, this action becomes statute barred hence the court has no jurisdiction. He cited the case of Grains Production Agency Vs. Charles Ezegbulem 1999 I NWLR Pt. 587 at 408 Paragraph B. Counsel also invited the court to look at the writ of summons, as in this case the complaint, the statement of claim or facts to determine the cause of action, when the cause of action accrued and when the action became statute barred. Counsel called in aid the cases of Ogundipe Vs. NDIC 2008 All FWLR Pt. 432, Mohammed Vs. Military administrator plateau State 2001 16 NWLR Pt. 740 at 545 counsel went further to posit that since the claimant slept on his right for so long, he has no enforceable claim before the court and as such, this suit should be dismissed. He cited the cases of Unilorin Vs. Adeniran (2007) 6 NWLR Pt. 1031 498 at 521. Ibrahim Vs. JSC 1998 14 NWLR Pt. 584 I at 46 , FRN Vs. Gold 2007 All Fwlr Pt. 380 at 1444 Fajimolu Vs. Unilorin 2007 FWLR PT. 350 AT 1361 AT 1374; Ebioye Vs. NNPC (1994) 5 NWLR Pt. 347 649 at 666. The court’s attention was also drawn to paragraphs I (e) and 16 of the claimants statement of claim. Counsel urged the court to grant his prayers. In opposing the applicant Mr. Ainoko Counsel to the claimants /respondent filed a 9 paragraph counter affidavit and a written address. In his argument in opposition, counsel contended that the entire application of the defendant was misconceived in law considering the fact that the letter of termination dated the 11th of September 2012 came to the notice of the claimant or was served on the claimant on the 27th of September 2012. In that sense, he contended further that time begins to run from the 27th of September 2012 when the claimant became aware of the letter and its content. He posited further that since the case was instituted in this court on the 24th of December 2012, the suit cannot be statute barred under Public Officers Protection Act (POPA) as it was instituted clearly within three months calculated from the arousal of the cause of action, counsel fortified His submission by calling in aid the cases of Ebumfolami Vs. Okege 2008 All FWLR Pt. 416 1895 at 1912; Inyang Vs. RT Of first century Gospel Church 2006 All FWLR Pt. 314 PP 278 at 290 -291 and urged the court to look at the writ of summon and statement of claim of the claimant to conclude that this suit is not statute barred. On the issue of jurisdiction, counsel referred the court to the case of Sken consult Vs. Ukey 1981 816 and urge the court to hold that this Honounurable court has the ample jurisdiction to try and conclude this suit as the applicant has not given any justifiable reason to the contrary. Counsel further submitted that the applicant in this motion did not in any way controvert the affidavit evidence to the effect that the letter of termination dated 11th September 2012 was received by the claimant on the 27th September 2012. He urged the court to regard that piece of evidence as unchallenged in the absence of any rebuttal. He cited the case of Insurance Brokers of Nigeria Vs. Attantic Textile Manufacturing Co. Ltd 1196 9-10 SCNJ 171 at 181. Counsel finally urge this court to follow the precedent laid down by the supreme court in the cases of Tukur Vs. Govt of Gongola State 1989 4 NWLR (Pt 117) 517 to the effect that the writ or complaint of the claimant should be the court sole focus in deciding this application. I have carefully perused the statement of claim and the writ of summons of the claimant I have also gone ahead to look at the witnesses statement on oath, the various affidavits and the written addresses filed in this case. The lone question or issue for determination in this application is as follows: “whether this suit is caught by the provisions of the Public officers protection Act Cap 41 laws of the Federation of Nigeria 2004 in view of the writ of summons/complaint, the statement of facts and the affidavit of the applicant.” I agree entirely with the submission of counsels that what the court need to do in arriving at a decision as to whether or not the suit is statute barred is to look at the writ of summons and the statement of claim / facts and marry or juxtapose the facts therein with the date of arousal of cause of action and the date of institution of the suit. See the case of Alhaji Bala Hassan Vs. Dr. Muazu Babangida Aliyu and Other 2010 17 NWLR Pt. 1223 547 SC where Adekeye JSC said “a defence founded on statute of limitation like the public officers protection Act is a defence that the plaintiff has no right of action. It is a defence which can be traced in limine and without any evidence in support it is sufficient if prima facie the date of taking the cause of action outside the prescribed period is disclosed in the writ of summons and statement of claim. The defence must be pleaded while the trial court has a duty to confine itself to the pleadings filed by the parties.” Also in the case of the Minister of petroleum and Mineral Resources Another Vs. Ekpo Shipping line Ltd 2010 12 NWLR Pt. 1208 261 SC , The Supreme Court held that the particulars necessary for the consideration of whether an action is statute barred or not must be applicant. Now in applying the Supreme Court decision stated above, let us look at the pleadings of parties. Paragraph 13-15 of the claim reads; 13 “the claimant was at all material time in 2010 at the Agency’s academy Jos received a query letter Ref. NDLEA/SN/CON/754/I/143 dated 4th March, 2010 from the defendants, the letter is pleaded. 14. Claimant replied the query and was submitted to the defendant. The defendants are put on notice to produce the reply to the query. 15. Claimant states that from 4th March 2010 when he answered the query, he did not hear anything from the defendant again. 16. However on 27th September 2012 claimant received a notice of punishment letter dated 11th September, wherein the defendants terminated his appointment on fresh allegations which claimant was not given the opportunity to defend” It must be noted that the writ of summons was taken out on the 24th of December 2012 while the letter written by the claimant’s counsel asking for reinstatement of the claimant is dated 20th December 2012 the appeal letter by the claimant asking for reconsideration of his case is dated 5th October 2012; The joint statement of defence of the defendant averred in paragraphs 13 and 14 as follows: 13: the defendants aver that on or about the 7th September 2012 at its inaugural meeting, the governing board of the agency approved the punishment which was conveyed to the claimant by the secretary to the board vide letter ref. No. NDLEA/SN/CON/754/VOL .I/47 dated September 11th 2012. The proceeding of the governing board is pleaded. 14: The defendants deny paragraph 16 of the statement of facts and further avers that claimant’s appointment was transparent and in accordance with due process under NDLEA order 2001 rules on discipline. The defendants shall found on the NDLEA order 2001 rules on discipline”. A cursory look at the letter dated 11th September, 2012 titled “notice of punishment” listed as no 5 in the list of exhibit attached to the claimant front loaded process has no date of receipt. i.e there is no acknowledgement on it to show apparently the date of dispatch or the date it was received by the claimant. The reasoning of the Supreme Court in the cases cited above I.e Hassan Vs. Aluyu, Minister of Petroleum Vs. Ekpo Slipping line are very logical; for if a person’s appointment is to be terminated and he is not made aware of the termination, he simply remains in the service. It follows that for such intended termination or retirement to take effect, it must be communicated effectively to the person, and it is also logical to say the letter would take effect from the date it was received by the person to be effected. It is from the date of receipt or when it was brought to the notice of the person to be affected that the date of counting for any limitation of action will start counting. Since the date of receipt of the letter of punishment was not indicated by the applicant, it means that there is no fact within the respondent’s statement of claim on which the applicant can base their argument that the suit was filed after 3 months from the date of accrual of cause of action. This is so because the cause of action arises from the date of receipt of termination letter. It is trite law that he who assents must prove. See Section 113 of the Evidence Act 2011, Yussuf Vs. Adegoke 2007 11 NWLR (Pt 1045) 332. This principle remains equally, inviolable with respect to raising and proving lack of jurisdiction in court; see our line ltd Vs Scc Nig. Ltd and others 2009 LPELR 2833 SC P. 23 paragraph B. where the court said ; Where a party raises issue of jurisdiction, the onus is on him to give prima facie evidence of lack of jurisdiction” Evidence of the date the letter of punishment was brought to the notice of the respondent must easily be within the reach of the applicants since they are the persons that issue out the letter and served it on the respondent. The applicants pleadings are silent on this. I am therefore left with 20 alternative that to rely on the pleadings of the claimant to the effect that he received the letter of punishment on 27th September, 2012. Where there is no evidence on which to raise issue of jurisdiction or where the evidence is not clear or sufficient the applicant must produce the evidence or remedy the defect by deposing in an affidavit or producing authentic document to that effect. See our line Ltd Vs. Nig. Ltd and Others (Supra). The applicant has failed in this regard. The claim of the claimant and this pleadings shows that the suit was instituted on 24th December, 2012 while the right of action accrued on 27th September, 2013: this period shows that the right of action is between 27th of September 2012 to the 26th of December 2012 which is 3 months. Moreover it has been decided and I am bound by precedent to the effect that Public Officers Protection Act (POPA) does not apply in cases of work done and labour done . See FGN Vs. Zebra energy Ltd 2002 18 NWLR Pt. 798 P. 162 at 197. Ogun State Government Vs. Dalami Nig. Ltd 2007 9 NWLR Pt. 1038 P. 66 at 100 . The claimant in relief g of his writ is also claiming salaries, allowances and emoluments due to him from September 2012 when he was terminated by the defendant up to the date of judgment. This claim is for work and labour done. It is incumbent on this court to look into the issue and would not with a wave of hand deprive the claimant its legal capacity to ventilate its grievances. See the case of A.G. Rules Vs. Ag. Bayelsa 2013 3 NWLR Pt . 1340 P. 123 at 148 – 150 paragraph F-A (Ratio 9). From the above analysis and authorities, the applicant has failed to produce evidence upon which this court can based the application of Public Officers Protection Act (POPA) to this suit; consequently this suit is not affected or afflicted by Public Officers Protection Act (POPA) and is not statute barred. Since the right of action, enforcement and judicial relief is not removed, this court has the jurisdiction to hear and determine this suit to conclusion see Madukolu Vs. Nkedilim 1962 2 SC NLR 341. Moreover the jurisdiction of court is derived from statutory provisions. In National Industrial Court (NIC), the jurisdiction is derived from the 1999 constitution as amended and the NIC Act 2006. The NPO of the defendant applicant is therefore devoid of merit and it is accordingly dismissed. This case shall proceed to trial on the merit. No order as to cost. ---------------------------- - Hon. Justice P.O Lifu JP. Judge