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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Thursday 13th March, 2014 SUIT NO: NICN/ABJ/109/2013 Between: Mmuenu Aminikpo Claimant AND The Police Service Commission and 2 Others Defendants REPRESENTATION Parties absent: No Legal Representation for the Parties. RULING/JUDGMENT By a notice of preliminary objection (NPO) dated the 8th of July 2013 but filed on the 9th of July 2013, the 2nd and 3rd defendant raised a preliminary objection to the jurisdiction of this court on the following grounds (1) The principal reliefs sought by the plaintiff in this suit are declaratory and cannot be granted without proof. (2) The 2nd and 3rd defendants named in this suit does not have the statutory powers to promote, reinstate or even terminate the appointment of the complaint in this context and thereby make the application grossly incompetent and should be struck out (3) The applicants application is an erosion of law particularly section 2 (a) of public officers protection Act 2004 The application is supported by a written address wherein the 2nd and 3rd defendants counsel, Mr. U.S. Nwodo (DSP) submitted that the case of the claimant is caught up by section 2 (a) of the Public Officers Protection Act Cap P. 41 Laws of the Federation, 2004 as the claimant in this suit brought their case outside the three months statutory period. Counsel contended further that the claimant who was dismissed from the Nigeria Police Force in 2007 commenced this action on the 29th of April 2013. The right of action, counsel submitted have been extinguished. Counsel call in aid the cases of Etim Vs. IGP 2001 II NWLR Pt. 724 266 at 419; Wilson Vs. Oshin 2000 9 NWLR Pt. 673 at 442 Brawal shipping Nig. Ltd Vs. F.I Onwadike Co. Ltd 2000 II NWLR Pt. 678 at 420; Federal College of Education Pankshin V s. Pusmut 2008 12 NWLR Pt. 1101 at 379 -602. Counsel further submitted that the court will refuse to order reinstatement of an employee whose employment has statutory flavours. Counsel urged the court to look at the writ of summons and the statement of claim to determine the limitation period in this case. Counsel cited the case of Adekoya Vs. Federal Housing Authority 2008 NSCQLR Vol. 34 at 952. Counsel also urged the court to invoke section 167 (d) of the evidence Act to hold that declaratory relief of the claimant must be proved before they are granted. Counsel cited the case of Ogunleye Vs. Aina 2011 3 NWLR Pt. 1235 at 479; Spring Bank Plc Vs. Adekunle 2011 1 NWLR Pt. 1229 581 at 592. Counsel finally urged the court to dismiss the claimant suit for want of jurisdiction. This suit was instituted on the 29th of April 2013. For the past six adjournments the claimant never attended nor appeared in this court for once in pursuit of his case. His counsel, Perry Ikoro Esq. who filed the processes on his behalf appeared only on the 17th of July 2013 and on the 6th of November 2013 and stopped coming to court despite the telephone calls made to him by the registrar of this court and counsel to the 2nd and 3rd defendant at the instant of the court occasioned by the inability of the court baillif to trace the counsel’s address for the purposes of affecting the services of hearing notices. Consequently the 2nd and 3rd defendants counsel was allowed to move his motion culminating in this ruling. I have gone through the prayers and the written address of the 2nd and 3rd defendants in the Notice of Preliminary Objection (NPO) and the authorities cited therein. The second and third grounds of the objection can only be considered when and if evidence have been led during trail as it goes to issues bordering on declaratory reliefs, issues of proof and matters connected with the statutory powers of the Nigeria police and the Inspector General of Police (IGP) to discipline, terminate and reinstate. The only potent ground left for consideration by this court is the issue bordering on section 2 (a) of the public officers protection Act LFN Cap P.41 2004 even though it is inelegantly crafted and drafted. The central issue in the Notice of Preliminary Objection (NPO) of the 2nd and 3rd defendants is the jurisdiction or otherwise of this court to entertain this suit. Jurisdiction of courts to entertain a suit is based on the claimants averment in the statement of 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 court in which jurisdiction is vested. In order words, it is the claimants reliefs or prayers that cloth 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. See the case of P&C.H.S.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 third alteration to the 1999 constitution of the Federal Republic of Nigeria (FRN) and other subsidiary legislation. From the facts available and the applicable law, I hereby formulate a sole issue for determination. “Given the state of pleadings of the claimant and the applicable law, is this suit caught up by the Public Officers protection Act? Before looking at the reliefs and the pleadings of the claimant, what does the Public Officers Protection Act Cap P. 41 LFN 2004 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 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. 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 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 an alleged neglect or default in the execution of such laws, duty or authority See also the case of Ekeogu Vs. Aliri 1990 NWLR (Pt. 126) 345. The question to be further determine is whether the defendants in this suit i.e. the Police Service Commission, the Nigeria Police Force or the Inspector General of Police (IGP) are public officers or public officers performing public duties? In the cases of Nwaogwugwu Vs. President of the FRN and Ibrahim Vs. Judicial Service Commission of Kaduna State, the supreme court of Nigeria held that 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 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 (FRN) (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 as specified in Part II of that schedule. A careful look at this fifth schedule part II of the 1999 constitution of Nigeria shows that the 2nd and 3rd defendants are specifically mentioned while the 1st defendant is contemplated under paragraph 9 of the schedule under consideration. Consequently I hold that the defendants are public officers within the ambit of the term “public officers” as contemplated under the public officers protection Act. They can therefore take legal protection under the Act in question. Now let me consider the claims and reliefs of the claimant as contained in his pleadings. In paragraphs 9 and 10 of the claimants statement of claim, he pleaded as follows:- ‘9’ the plaintiff avers that after their enlistment training, the plaintiff was posted out to serve in Cross River state and continued to serve there without any blemish until sometime in 2007, the defendants compiled a list of persons for summary dismissal without any orderly room trials for any misdemeanor. ‘10’ the plaintiff also saw a copy of the list and discovered that his name was also in the list under the category of persons dismissed for being an illiterate and unfit to be police officer. The plaintiff hereby pleads the said publication, and the defendants are hereby put, on notice to produce the original thereof at the trial of this suit. In paragraphs 5 and 6 of the witness statement on oath, the claimants depose as follows: ‘5’ that after my enlistment training, I was posted out to serve in Cross River state and continued to serve there without any blemish until sometime in 2007, the defendant compiled a list of persons for summary dismissal without any orderly room trials for any misdemeanor ‘6’ that I also saw a copy of the list and discovered that my name was also in the list under the category of persons dismissed for being an illiterate and unfit to be police officer From the above highlighted portions of the claimant’s statement of claim and his witness statement of oath, it appears he was never given any official and formal letter of dismissal from the police force by the defendant but saw the list of police officers for summary dismissal in 2007 and found his name among the list. In law, this is constructive notice to him as he has seen the list of dismissed officers himself. The suit in question was filed on the 29th of April 2013. Assuming he saw the list on 31st December 2007, he has waited almost 5 years 4 months and twenty nine days before approaching the court to ventilate his grievances. It is my humble view that the right of action of the claimant accrued to him in 2007 when he saw his name in the list of dismissed officers of the defendants. There can be no doubt therefore that the claimant instituted this action after three months from the date of accrual of right of action. The Claimant cannot also take refuge in any of the exceptions created by the law and their lordships in recent times as can be seen in the decision of the supreme court in the case of A.G. Rivers Vs. Bayelsa 2013 3 NWLR (Pt. 1340) 123. He had slept on his right and have only himself to blame for being so caught by the provisions of this Act. As justice John Afolabi Fabiyi JSC put it in the case of Sulgrave holdings Inc Vs. Federal Government of Nigeria (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 defendants in this suit acted within the confines of their office. The action taken by the claimant outside the prescribe period was ill-tuned as same was clearly statute barred. I so hold. It is cogent to make the point here once again 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 reconsider in the light of the stage of our development festering with poverty and illiteracy and disease vis – a – vis the individual’s constitutional rights of equality before the law and the court and as against the back ground of section 6 (b) of the 1999 constitution as amended. The social justice crusaders can equally join in this struggle. In the light of all the reasoning and conclusion in this ruling, this suit is statute barred and it is accordingly struck out. Ruling is entered accordingly and I make no order as to cost. ------------------------ Hon. Justice P.O Lifu (JP.) Judge