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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/212/2013 Between: Ibukun Omosehin & 2 Others Claimants AND Inspector General of Police & 3 Others Defendants REPRESENTATION 1st and 2nd claimants present. 3rd and the defendants are absent. Dickson Sofiagha for the claimants. No Legal representation for the defendants JUDGMENT By a complaint filed on the 22nd August 2013, the claimants in this suit are claiming against the defendants the following reliefs: (1) A declaration that the wrongful dismissal of the plaintiffs by the 1st defendant without administrative and/or orderly room trial or warning whatsoever is a violation of the plaintiffs fundamental human right to fair hearing. (2) A declaration that the defendants act is illegal unconstitutional null and void and is of no effect whatsoever. (3) An order compelling the defendants to reinstate the plaintiffs and to pay up all salaries, allowances and further entitlements which is due to the plaintiffs from the 22nd day of November 2008 till date (4) And for such further order or other orders as this Honourable Court may deem fit to make in the circumstances. The complaint is accompanied by a statement of claim, the witness statement on oath of the three claimants, list of documents and the frontloaded exhibits in accordance with the rules of this court. The originating processes were accordingly served on the defendants on the 27th of August 2013. The defendant did not bother to enter appearance or file any process in defence despite the issuance and service of several hearing notices on them namely the 8/10/13, 5/12/13, 20/01/14, 12/02/14, 17/03/14, 10/05/14 and 12/04/14. On the 12th of February 2014, the claimants opened their case with the testimony of the 1st claimant who adopted his witness statement on oath and tendered the following exhibits (1) Witness statement on oath of the 1st claimant is Exhibit I.O01 (2) FCT High Court Judgment is Exhibit I.O02 (3) Federal High Court order is Exhibit I.O03 (4) Three letters written to the defendants is Exhibits I.O04A to I.O04C (5) Signal from 1st defendant to 3rd defendant is Exhibit I.O05 (6) Signal from Commissioner of Police (COP) to Inspector General of Police (IGP) is Exhibit I.O06 The 1st claimant closed his case by asking the court to grant his prayers In the 2ndclaimants testimony, he adopted his written statement on oath as his oral testimony before the court and tendered the following exhibits. (1) Witness statement on oath of the 2ndclaimant is Exhibit I.O07 (2) FCT High Court Judgment is Exhibit I.O08 (3) Federal High Court order is Exhibit I.O09 (4) Three letters written to the Inspector General of Police (IGP) on issue of reinstatement is Exhibits I.O10A-10C (5) Signal from Inspector General of Police (IGP) to Ekiti State Police Command is Exhibit I.O11A (6) Response from Ekiti Command to Inspector General of Police is Exhibit I.O 11B The third claimant who also testified on his behalf adopted his Witness Statement on oath as his oral testimony and tendered the following documents as Exhibits (1) Witness statement on oath is Exhibit I.O012 (2) FCT High Court Order is Exhibit I.O013 (3) Federal High Court order is Exhibit I.O014 (4) Three letters written to Inspector General of Police by the witness are Exhibits I.O 15A – 15C (5) Signal from Inspector General of Police (IGP) to Ekiti State Police command is Exhibit I.O 016A (6) Response from Ekiti State Police Command to Inspector General of Police (IGP) is Exhibit I.O 016B Witnesses asked the court to grant all their reliefs This case was then adjourned thereafter to the 17th of March, 2014, 10th of April 2014 for the defendant to cross examine or enter defence all to no avail despite the subsequent issuance and services of hearing notices on them. On the 7th of July 2014, this court raise the issue of jurisdiction suomoto and urged the counsel to the claimant to address it on whether or not this suit is not caught up by section 2A of the Public Officer Protection Act (POPA) being a statute of limitation. On the 17th of July 2014, a written address on this issue of jurisdiction raised by the court was adopted by the claimant counsel. In the said written address counsel formulated a sole issue for determination by the court which is; Whether in the circumstances of this case, the claimants action as it relates to the defendants can be said to be statute barred by virtue of section 2A of the Public Officer Protection Act. Counsel submitted that this suit cannot be time barred because the defendant acted out of malice, bad faith and outside the scope of their authorities. Counsel contended further that the claimant who were arrested and detained for 2 years from 22/11/2008 were unlawfully denied salaries and allowances till date and still refused to reinstate the claimant despite their acquittal by the court of the criminal charges. Counsel contended also that the act of denying the claimant salaries, allowances and reinstatement was a continuous injury which has not ceased and as such it creates an exception to the application of the Public Officer Protection Act (POPA) Law of Federation of Nigeria Cap P41 2004. Moreover, counsel posited, the claimants were never tried in the police orderly room, neither were they served with any dismissal letter till date. It is the further submission of counsel that time begin to run for the purpose of calculating the limitation period when all the facts have happened which are material to be proved to entitled the plaintiff to succeed. He cited the case of NPA Vs. Ajobi 2006 7 SC Pt 23 at 26 Counsel submitted also that time will begin to run in this case when the wrongs committed against the claimant ranging from arrest, detention, denial of salaries, allowances and eventual dismissal from service all cumulatively ceased and since it has not ceased, it becomes a continuous injury or damage of which section 2(a) of Public Officer Protection Act (POPA) cannot apply. Counsel call in aid the cases of Adepoju Vs. Oke 1999 3 WLR Pt 594 P. 154; Gulf Oil Co. Ltd Vs.Oluba 2002 12 NWLR Pt 791 P.92 at 112; SPDCN Ltd Vs. Amadi 2010 13 NWLR Pt 1210 Pg 90 at 95. Counsel contended that since the defendant acted outside the confine of a public duty, outside the bounds of public authority, acted in bad faith, in abuse of office, with no legal justification, they can be sued outside the three months period provided by the Public Officer Protection Act (POPA) LFN Cap P14 2004. Counsel drew the attention of the court to the cases of Aremo Vs Adekanye 2004 13 NWLR Pt 891 P. 572 at 593; CBN Vs. Okosie 2004 10 NWLR (Pt 882) at 488 at 398 Nwakere Vs. Adewunme 1967 NWLR P.45 at 49; Ekeogu Vs. Aliri 1990 1 NWLR Pt 126, 345 Counsel submitted also that the acts of the defendants were not done in pursuance of the official duty. He urged the court to hold that this suit is not caught up by the limitation period as contained in Public Officer Protection Act (POPA) LFN Cap P14 2004. On the main claimants final written address dated and filed on the 4/4/14, the claimant counsel after renewing the facts of this case submitted a lone issue to the court for determination thus; Whether the plaintiffs has by credible evidence proved their case before the Honourable court as to entitle this court to enter judgment in favour and award to them as per the claim contained in their statement of claim. Counsel submitted that all what the claimant need to do is to adduce sufficient, cogent, and credible evidence in proof of his or her case such that when his evidence and that of the defendant is placed on the imaginary scale of justice the evidence of the claimant will tilt the scale ie preponderate. Counsel call in aid the case of SOSAN Vs HFP ENG. NiG. Ltd 2004 3 NWLR (Pt 861) 546 at 567. Counsel posited that the claimants have discharged the burden imposed upon them by law as they have adduced cogent, sufficient and credible evidence to entitle them to judgment. Counsel urged the court to consider their pleadings and evidence in relation to the following: (1) The non dismissal of the claimants by the defendants (2) The claimants were still staff and under the employment of the defendants before their purported dismissal (3) That the claimants were arrested, and detained by the defendants indefinitely under released by the order of the FCT High Court (4) The claimants have been denied their salaries, allowances and reinstatement till date (5) The evidence of the claimant remain uncontroverted and as such, the claimant evidence is deemed admitted in accordance with the decision in the case of Achimugu Vs Minister Federal Capital Territory 1998 11 NWLR (Pt 574) 467 at 477; Ogbiri Vs. NAOC Ltd 2010 14 NWLR (Pt1213) 208; Okoebor Vs. Police Council (Pt 2003 12 NWLR(Pt 834) 444 at 473 Counsel contended further that the wrongful dismissal of the claimant by the 1st defendant without trial or any warning amounts to a breach of the provision of section 36(i) of the 1999 Constitution of Nigeria as amended bordering of Fundamental Right of the claimants on fair hearing. According to counsel, the purported dismissal was not published neither was a letter of dismissal issued and given to the claimants. This evidence, counsel argued, remained unchallenged, uncontroverted and should be believed by the court as there is no other evidence provided by the defendant to enable the court weight the two side on the proverbial imaginary scale as the defendant did not enter appearance nor filed any defence despite the various opportunities given to them to do so. Counsel relied on the case of Asafa Foods Factory Vs. Alraine Nig. Ltd 2002 12 NWLR Pt 781 353 at 380 (SC) and urged the court to grant all the reliefs of the claimants. I have carefully gone through the reliefs before the court, the submission of learned counsel for the claimants and the authorities cited. In a civil case of this nature, where there is no evidence from the defendant to enable the court weigh the evidence on the proverbial imaginary scale, the claimant only needs a minimal proof to discharge the burden place on him. See the case of Newbreed Organisation Ltd Vs. Erhomosele 2006 5 NWLR Pt 974 499 at 527 where the Supreme Court of Nigeria enunciated the following principles The position of the law is that where an adversary fails to adduce evidence to put on the other side of the imaginary scale, minimal evidence adduce by other side would suffice to prove its case. See also the case of Buraimoh Vs. Bamgbose 1989 3 NWLR Pt 109 P.352; Nwabuoku Vs. Ottih 1961 2 SC NLR 232 The cause of action in this case accrued when all the fact that will enable the claimant to prove its case are available. In fact in the case of Mosojo Vs. Oyetade 2003 13 NWLR Pt 837.The Supreme Court defined a cause of action as follows; “The word “cause of action” means the fact which when proved will entitled a plaintiff to a remedy against a defendant” The claimants in this case were dismissed on the 22nd of November 2008 while this suit was instituted on the 22nd of August 2013; The claimant counsel argued strenuously that the statute of limitation such as Public Officers Protection Act Cap P41 LFN 2004 are not applicable under contract of employment. He cited FGN Vs. Zebra Energy Oil Ltd 2002 18 NWLR (Pt 198)162. A careful reading of that Judgment will show that the Supreme was referring to specific contract that are commercial in nature such as sale of goods. The Public Officers Protection Act is applicable to contract of employment as held by the Supreme Court in the case of Sulgrave Holdings Incorp Vs. FGN 2012 17 NWLR (Pt 1329) 309 where Galadima JSC said; “My understanding of this provision is that the Act gave perimeter within which a public officer can take protection under the Act. As long as the public officer acts in the usual function of his office, whether he does it correctly or wrongly he is protected by the section. It is not open to the court to pry into his conduct in carrying out his official 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 function, that is, he acted outside the colour of his office, he cannot claim protection under the Act” In the case, the claimants were dismissed by the Inspector General of Police who has all the power over the rank and file of the Nigeria Police Force. It is only the Superior Police Officers that can be discipline by the Police Service Commission as provided for under the 3rd schedule part I section 30 of the constitution of the Federal Republic of Nigeria (FRN) 1999 as amended. The claimant also mentioned the fact that the claim of the claimants all border on continuing injury. Continuous injury often refers to areas where the salary, allowances of claimant/employees which are paid periodically are in arrears and on each default a new cause of action is created thus it is difficult and almost impossible to be time barred. However, it must be the main claim and not the ancillary relief. In the case at hand, the main reliefs are declaratory and reinstatement. Thus in the case of AG Rivers State Vs. AG Bayelsa State 2013 3 NWLR Pt 1340 123 at 148 – 150 paragraph F – A. The Supreme Court of Nigeria said; The public officers protection Act is a statute of limitation. The general principle of law is that where a statute provides for an 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 extinguish by such law.” In my considered view, I think this is exactly what has happened in this case. Time for the purpose of accrual of right of action begins to run when all facts have happened which are material to prove the claimants case to entitle them to succeed. The date of accrual of the cause of action ie 22/11/2008 when they were dismissed marked the commencement of computation of the three months; In that context after the dismissal, the claimants waited 4 years 9 months before approaching this court to ventilate their grievances. Any issue bordering on limitation of action goes to the jurisdiction of the court and jurisdiction as we know is a threshold issue. If a court lacks jurisdiction, anything it does under that circumstances goes to no issue. It is the claim endorse on the writ or the statement of claim that will be considered. See the case of Society BIC S.A Vs. Chargin Ind. Ltd 2014 4 NWLR Pt 1398 497. In order words, jurisdiction is determine by the claim and not the defence or any other process. It is the writ of summons and the statement of claim 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 or by statute. See the case of PDP Vs. Sylva 2012 13 NWLR Pt 1316 85; Osoh Vs. Unity Bank Plc 2013 9 NWLR Pt 1358 SC I The claim on the complaint has the following endorsement: 1. “A Declaration that the wrongful dismissal of the Plaintiffs by the 1st Defendant without administrative and/or orderly room trial and/or any other trial or warning whatsoever is a violation of the Plaintiffs fundamental human rights to fair hearing. 2. A Declaration that the Defendants act is illegal unconstitutional null and void and is of no effect whatsoever. 3. An Order compelling the Defendants to reinstate the Plaintiffs and to pay up all their salaries, allowances and further entitlements which is due to the Plaintiffs from the 22nd day of November, 2008 till date. 4. And for such further orders or other orders as this Honourable Court may deem fit to make in the circumstances”. From these reliefs, once again it should be noted that the claimants employment as police officers were terminated on the 22/11/2008. For the application of section 2(a) of the Public Officers Protection Act (POPA) to apply two conditions must be fulfilled; these conditions are (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 Ekeogu Vs. Aliri 1990 NWLR (Pt 126) 345 By the authority of FGN Vs. Zebra Energy Ltd 2002 18 NWLR Pt 798 at 162 Public officers was held to include a natural person holding public office, sued in their personal names. It is also extend to public bodies, artificial person, institutions or person sued by their official names and titles. It also includes corporate or incorporate , statutory bodies or persons. The 1999 constitution of the Federal Republic of Nigeria (as amended) has at section 318 define 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 specified in part II of that schedule. A careful look at the fifth schedule part II of the constitution shows that the 1st, 3rd – 4th defendants is specifically mentioned under item 9, while the 2nd defendant is mentioned under item 14. Consequently I hold that the defendants are public officers within the ambit contemplated by the Public Officers Protection Act. Section 2(a) of the said law says “where any action, prosecution or other proceedings is commenced against any person for any act done in pursuance or execution of an 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……………………………………………………” The claim in the suit shows that the dismissal of the claimant was done as part of the official function of the defendant. This Act has therefore remove the right of action, the right of enforcement and the right to judicial relief in the claimant. This leaves the claimant with a bare, empty and hollow cause of action which they cannot enforce because the alleged cause of action is statute barred and cannot be maintained. The claimant in this case has slept on their rights. They have been dissipating resources at pursuing litigation at the other high courts without remembering to challenge their dismissal until 27/08/2013 when their claim has become statute barred. Indeed they have delayed so much; Delay defeat Equity and Equity aids the vigilant. it is in this light that I cannot agree more with Chukwuma – Eneh JSC when he said at page 338 of Sulgrave Holdings Incorp Vs. FGN Supra. “… It is cogent to make the point here that the intendment of this Act in my view has not provided a level playing ground for all persons before the law and the court and ought to be revisited by our law-makers to consider in the light of the stage of our development. Pestering with poverty and illiteracy and disease vis-à-vis the individual constitutional rights of Equality before the law and the background of section 6(b) of the 1999 constitution (as amended) However, this is the law today and I am bound by precedent. Until the expected changes come, the courts shall continue to apply it when the need arises. On the strength of what I have said so far in this ruling including my reasonings and conclusions, there is no need for me to go to the evidence adduce during trial since I do not have jurisdiction by virtue of the provision of the Public Officers Protection Act (POPA) which is a limitation law. The case of the claimant is hereby dismissed. ----------------------------- Hon. Justice P.O Lifu JP. Judge