Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Monday 20th January, 2014 SUIT NO: NICN/ABJ/157/2013 Between: Mr. Abraham Francis Adu’ojo and 121 Others Claimants AND Nigerian Export Promotion Council and Another Defendant s REPRESENTATION D. B. Sunama Esq. for the 1st to the 121st claimant Stella John Miss for 116th Claimant Ann Obiageli Eze for 117 to 121 claimants Egbet Nathaniel Esq. for the 1st defendant, N.C. Nwaiwu Esq. for the 2nd defendant. RULING By a Motion on Notice dated the 23rd of September 2013 but filed on the 25th of September 2013, the first defendant/applicant raised an objection to the hearing of the substantive suit on the ground that (1) The suit is not justiciable in law on the ground that it is caught up by section 7 of the Limitation Act Cap 522 laws of the Federal Capital Territory of Nigeria. (2) The Court lacks jurisdiction to entertain the suit. The 1st defendant/applicant filed a written address to the Preliminary Objection. In arguing the objection, Mr. Egbet Nathaniel counsel for the first defendant submitted and raised a sole issue for determination by the court which is; “Whether in view of section 7 limitation Act Cap 522 laws of the Federal Capital Territory of Nigeria, the plaintiff’s suit is statute barred.” Buttressing his submission, Mr. Nathaniel posited that since the claimants brought their action on the 25th of July 2012, when the cause of action arose on the 30th of November 2005, they are clearly outside the time allowed by law to institute their action. Consequently, he submitted, that the right of action, the right of enforcement, the right to judicial reliefs have been extinguished. He called in aid the cases of P.N Udoh trading Co. Ltd Vs. Abere 2001 11 NWLR Pt. 723; Egbe Vs. Adefarasim (1987) I NWLR Pt. 47 at I. counsel urged the court to strike out the claimants action as it constitutes an abuse of the process of the court. Counsel further drew the courts attention to paragraph 6 of the claim wherein the claimants admitted being severed from the defendants services in 2005. It is further argued that time for the purpose of computation begins to run from the date of arousal of course of action. Counsel cited the case of Sauda Vs. Kakawa LGA 1991 2 NWLR Pt. 171 at 379; Solomon Vs. African Steamship coy 9 NLR 99. In His reaction, counsel to the second defendant Mr. N.C. Nwaiwu aligned himself with the submission of Mr. Nathaniel, counsel to the first defendant; he submitted further that assuming the first defendant brought his objection under the wrong section of the limitation law, he should not be denied the relief of which he is entitled to in law; he supported this submission by calling in aid the case, of Forestry Research Institute of Nigeria Vs. Gold 2007 11 NWLR Pt. 1044 at 26 paragraph D-E. He urged the court then to consider section 2 (a) of the public officers protection Act as the relevant and appropriate law for this objection. He further submitted that paragraphs 5 & 6 of the claimants reply to the defence admitted that the cause of action arose in 2009. Counsel Urge the court to decline jurisdiction by the authority of Aniata Vs. Omofuma 1997 2 NWLR Pt. 485 at 113 paragraph F-H. In His response, counsel to the 1st to the 115th claimants D.B. Sunama Esq. filed a written address dated the 13th of November 2013 and filed on 14th November 2013 wherein he vehemently opposed the preliminary objection by formulating two issues for determination. (1) Whether in the circumstances of the case, it can be said that the provisions of the limitation Act cap 522 laws of the Federal Capital Territory Particularly section 7 thereof is applicable to the case (2) If the answer to issue number one is in the affirmative, whether in the light of the peculiar facts of the case, it can be said that the matter is statute barred. On issue one, counsel to the 1st -115th claimants argued that section 7 of the Federal Capital Territory (FCT) Law relates to actions founded on simple contract which stipulates a limitation period of six years while the action of the claimants arose out of employee/employee relationship being permanent and pensionable staff of the first defendant. He contended that the contract of the claimants bolders on employment, outside the realm of simple contract and simple contract is not evidence by seal, writing or record contrary to the position of the claimants who had appointment letters, confirmation and promotion letters. Mr. Sunama further urged the court to give an ordinary and plain meaning to sections 4 (b) and 65 (b) of the limitation law and hold that the provision of section 7 of the limitation law of the Federal Capital Territory do not apply to the first and the second defendants. He cited the case of Chigbu Vs. Tonimas Nig. Ltd 2006 4 SC pt 11 186; John Vs. Igbo Etiti LGA 2013 7 NWLR Pt. 1352 I at 14; AG. Bayelsa State Vs. AG Rivers State 2006 18 NWLR pt. 1012 596 to buttress his submissions. On issue two formulated for determination by Mr. Sunama, counsel contended that the pleadings of the claimants having revealed that the cause of action arose in 2009 through circular No. F C. 3418/S. 56 Vol. 11/C. I/40 dated 10th June 2009, directing the reinstatement of the claimants sacked in 2005, the suit, as constituted cannot be statute barred and he urged the court to so hold. He contended further that the cause of action, including the necessary facts and circumstances which has to be proved to entitled the plaintiff/claimants to succeed all happened in 2009 emanating from the circular of 10th June 2009. Counsel urged the court to discountenance the preliminary objection of the first defendant. In her response to the notice of preliminary objection of the first defendant, the 116th defendant, Mrs. Stella John Chinyere who appeared in person filed a written address dated the 14th of October 2013 but filed on 18th October, 2013 wherein after giving a succinct back ground to the suit, formulated two issues for determination (1) “Whether in the light of the facts and circumstances of this case as gleaned from the originating processes, this suit is statute barred regard being had (SIC) section to 7 (SIC) of limitation Act Cap 522”. (2) “Whether this honourable court has the jurisdiction to entertain this suit”. On issue one, Mrs. Stella John Chinyere posited that the limitation law of the FCT cited by the learned counsel to the first defendant was highly misconceived as that said law in all its ramifications do not apply to the case at hand. Counsel contended further that section 6 and 7 (all sub subparagraphs inclusive) of the limitation law of the Federal Capital Territory has no bearing whatsoever to the nature of the action at hand. Counsel referred the court to the meaning of cause of action as decided in the cases of P.N. Udoh trading Co. Ltd Vs. Abere 2001 11 NWLR Pt. 723 Yusuf Vs. Coop Bank Ltd 1994 7 NWLR Pt. 369 676 at 692 paragraph B. Egbe Vs. Adefarasin No 2 1987 I NWLR Pt. 47 I peroputa JSC Counsel referred the court to paragraphs 6, 9, 10, 11, 12, 13, 15, 17, 18, 19, 20 and 22 of the statement of claim and urged the court to hold that the cause of action in this suit arose in 2012 when the first defendant refused to recall those claimants invited for screening for the purpose of reinstatement as directed by the head of service and the civil service commission. Counsel further submitted that cause of action can only arise when the facts material to enable the claimant succeed in his cause are complete and has crystalised. Counsel cited the cases of Owei Vs. Ighiwi 2005 5 NWLR Pt. 917 at 214 paragraph E-F. Ademola Vs. Ajulo 1988 3 NWLR Pt. 80 I . Unity bank Plc Vs. Nwadike (2009)4 NWLR Pt. 1131 352 at 378 NPA Vs. Abu Airadion Ajobi 2006 7 SCNJ 168 Elebanjo Vs. Dawodu 2006 15 NWLR Pt. 1001 76 Counsel also relied on the case of Sani Vs. Okene LG. 2005 14 NWLR (Pt. 944) 60 to support the fact that where there is evidence of mistake, fraud, disability, injury or death, the party cannot take advantage of the limitation law. The 116th claimant contended further that the re-absorption of 102 sacked workers and a letter directing reinstatement of the other affected workers is an admission of a mistake of which the first defendant should not take advantage of. Counsel urged the court to hold that section 7 of the Federal Capital Territory limitation law Cap 5 22 is not applicable to this case. On issue two so formulated by Mrs. Stella John Chinyere, this court is being urged to hold that the cause of action became complete for the purpose of enforcement in 2012. Counsel urges the court further to continue to assume jurisdiction by virtue of section 254 c of the 1999 constitution and discountenance the first defendant’s objection by invoking section 13 and 15 of NICA 2006 and apply equity to this case. Counsel finally invited the court to the case of Woherem Vs. Emerenwa 2004 All FWLR Pt. 221 P. 115 70 and urge the court not to terminate the case at this stage but to consider this case under the exception to the statute of limitation. In her reply to the preliminary objection of the first defendant the 117th to the 21st claimants counsel Mrs. Ann Obiageli Eze filed a written Address dated and filed on the 8th of November 2013. In the written address counsel formulated two issues for determination which are similar to the one formulated by the 116th claimant. These issues are namely” (1) Whether in the light of the facts and circumstances of this case as gleaned from the originating processes, this suit is statute barred regard being had to section 7 of limitation Act cap 522. (2) Whether this honourable court has the jurisdiction to entertain this suit. On issue one, counsel contended that section 7 of the Federal Capital Territory limitation law Cap 522 cited by the first defendant’s counsel was inappropriate and highly inapplicable to the case at hand. Counsel submitted that it was very wrong for the first defendant to commence the process of instalmental reinstatement of staff sacked in 2005 by 2008 and abandoned the process half way in August 2011 when there was a clear cut circular directing reinstatement of the claimants. Counsel submitted further that the cause of action in this case arose as a result of the first defendants wrong doing and should not be made to benefit from their wrong. Counsel cited the case of Adimola Vs. Ajulo 1988 3 NW LR Pt 80 I; Sani Vs. Okene LG. 2005 14 NWLR Pt. 944 at 74 paragraph C-D. Counsel aligns herself with the arguments proffered by counsel to the 1st – 115th claimant and counsel to the 116th claimant and urge the court to discountenance the argument of the first defendant counsel. On issue two so formulated counsel urged the court to hold that section 7 of the limitation law of Federal Capital Territory cited by the first defendants counsel is grossly misconceived, vexations and inapplicable to this case. She finally urge the court to hold that the application brought by way of preliminary objection lacks merit. On reply on point of law, the first defendants counsel, Mr. Egbet Nathaniel, posited that the limitation law of the FCT has the same effect as the Limitation Act of the Federation. He called in aid the case of Eboigbe Vs. NNPC 1994 5 NWLR Pt. 347 paragraph 4. He further submitted that simple contract embodies contract of employment as both of them are subject to general contractual rules. He cited the case of Ajayi Obe Vs. Executive Secretary family Planning Council of Nigeria 1975 3 S C I Counsel finally submitted that the cause of action cannot be suspended during the period of negotiation as the cause of action in this suit commenced in 2005 and not 2012. He urge the court to so hold and uphold his objection. I have carefully and thoroughly read and painstakingly peruse the pleadings of the claimant/respondents the preliminary objection of the defendant /applicant and the written addresses and arguments in support of their respective positions. The defendant /applicant is challenging the jurisdiction of this court on the main ground that it is caught up with section 7 of the FCT Limitation Law CAP 522. Jurisdiction of court to entertain a suit is based on the claimant’s 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. Furthermore, it is the claim in any particular case that determines the court in which jurisdiction is vested. In order words, it’s the claimant’s claim that cloths the court with 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 is noted that the statute setting up the court also spells out the jurisdiction of the court. In the case of the National Industrial Court, it is the National Industrial Court Act 2006 and the third alteration to the 1999 constitution of the Federal Republic of Nigeria. From the facts and the available and applicable law, I hereby formulate a sole issue for determination “Given the facts, circumstance of this case and the applicable law, is this suit caught up by the limitation law of the Federal Capital Territory or the public officers protection Act”? Before looking at the reliefs and the claim of the claimants, what does the provision of the limitation law which was heavily relied upon say? Section 7 (1) of the limitation Act Cap 522 laws of the Federal Capital Territory provides as follows: 7 (1) “The following action shall not be brought after the expiration of six years from the date on which the cause of action occurred, (a) Actions founded on simple contract (b) Actions founded on quasi contract (c) Actions to enforce a recognizance (d) Actions to enforce an arbitration award, where the arbitration agreement is not under seal or where the arbitration is under an enactment other than the arbitration and conciliation Act. (e) Action to recover a sum recoverable by virtue of an enactment……..” It is very glaring here that the limitation period for bringing an action under simple contract or quasi contract or to enforce a recognizance, arbitration award or to recover a sum under an enactment is six years time frame from the date of accrual of cause of action. The question is, how does the claims in this suit fit into this law? I cannot see the relevance of this limitation statute to the case at hand. Simple contract are normal contracts which are not under seal, neither are they in writing. There are usually oral or parole and are not documented or on record. In this very suit, the claimants were employed with their respective employment letters, confirmed and even promoted in writing. Their disengagement were also evidenced in writing. It is also worthy of note that their employments are favoured statutorily and the terms and condition of service were equally contained in writing. Consequently I hold that the claimants employment are not mere simple contract as contemplated by the provision of section 7(1) of the Federal Capital Territory Limitation Law Cap 522. However, Mr. Nwaiwu had submitted that I should consider the motion under the public officers protection Act, Laws of the Federation of Nigeria, Mr. Nwaiwu, counsel to the 2nd defendant did not file any written address but since it is a legal issue brought forward by him as part of his submission on point of law, I considered it a very potent submission worthy of consideration. What does the public officers’ protection Act say? section 2 (a) of the public officers protection Act (POPA) law of the Federation of Nigeria 2004 has this to say: “Where any action, prosecution or other proceedings in 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 proceeding 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 (POPA) to avail any person two conditions must be satisfied namely: (1) 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. (2) 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 defendant in the execution of such law, duty or authority. See also the case of Ekeogu Vs. Aliri 1990 NWLR Pt. 126 345. In my considered view, the defendants has satisfied there two conditions stated above in the sense that (a) They are public officers i.e the various letter emanating from the first defendant were signed by public officers in their various designations. (b) They were acting in a public office or duty. By the various letters of “organizational restructuring services no longer required” written to the claimants and signed by one Mr. I . A. Badmos, Director, Admin and personnel of the first defendant, he was acting as a public officer performing a public duty. i.e by these letters of disengagement of the claimant the first defendant was acting within the confines of a public duty. By the Authority of FGN Vs. Zebre Energy Ltd. 2002 18 NWLR (Pt. 798) 162, public officers include 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. In this context then, the defendants sued in this case falls squarely under the definition of public officers for the purpose and within the context contemplated by section 2 (a) of the public officers protection Act. Moreover, the activities of the defendants complained about in this case was done in the course of official duty. 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 include artificial persons, public bodies or body of persons, corporate or incorporate statutory bodies or person. See the case of Nwaogwugwu Vs. President FRN (Supra) Ibrahim Vs. JSC Kaduna State. Now, let us consider the claims and the reliefs of the claimants. (a) An order compelling the defendants to pay the plaintiffs the sum of One hundred and seventy five million, seven hundred and fifty seven thousand, five hundred and fifty six naira (N175, 757, 556.00) being their total entitlements calculated to include accrued gratuity, pension fund benefits, repatriation allowance and terminal benefits in November 2005 as a result of the organizational restructuring, services no longer required carried out by the Federal Government’s economic Reform Policies in the year 2005. (b) An order of the honourable court compelling the defendants to reinstate the plaintiffs back to their positions in the services as contained in circular Ref. No. HCSF/PSC/PARA/437/3402/I/96 dated 20th January 2009 from the office of the head of Civil Service of the Federation on re-absorption of severed staff by parastatals MDAS and circular No. FC/3418/S. 56/Vol.II/C.I/40 dated 10th June 2009. (c) Payment of the sum of Twenty million (N20m) naira being general damagers for failure of the defendants to either reinstate the plaintiffs or pay them their severance benefits from the 30th November 2005 to date. (d) Interest on the judgment sum at court’s rate from the date of judgment until final liquidation of the entire judgment sum (e) Cost of the suit. The originating processes in this suit were filed on the 25th of July 2012. The claimants /respondent in their statement of facts filed along with their complaint avered that they were disengaged from the services of the first defendant through a letter dated the 28th of November, 2005 while the effective date of disengagement was the 30th of November 2005. Looking at this alone, the date of accrual of right of action, right of enforcement and the right to judicial relief is the first of December 2005 and by the provision of section 2 (a) of the public officers protection Act laws of the Federation of Nigeria 2004, the right to judicial relief terminates on February 28th 2006. Let us see the main claims and the reliefs of the claimants once again, The claimants are asking for their entitlements consequent upon their disengagement in claim (a) while claim (b) relates to the issue of reinstatement as directed by the head of Civil Service of the Federation as contained in circular Ref. No. HCSF/PSC/PARA/437/3402/1/96 dated 20th January 2009. Moreover by paragraph 6,10,11,12,13,14,15,17,18,19, and 20 of the claimants statement of facts, certain crucial facts can be deduced which of course constitute the grievances of the claimant. The paragraph reads by the letter of the first defendant dated the 28th of November, 2005 addressed to the claimants titled, Organizational restructuring Services no longer required; the first defendant stated as follows: “ Your total entitlements have been calculated to include the following items (1) Accrued gravity (2) Pension fund benefit (3) Repatriation allowance (4) Terminal benefit for services below 5 years.” By the circular No. FC/3418/S. 56/Vol. II/C.I/40 dated 10th June, 2009 signed by Dr. Y.A. Thorpe, all disengaged staff were directed to be reabsorbed and reinstated. The claimant through their claim are asking for the payment of their benefits already earned or reinstatement as directed. Once the first defendant refuses, fails or neglects to do any of these request, a new cause of action arises upon a continuous failure, refusal or upon any neglect to do so. This is what in law is referred to as continuous injury. In this situation, the Public Officers Protection Act Laws of the Federation of Nigeria permits an action to be brought on the cessation thereof outside three months. In the instant case, from the statement of facts and the attached exhibits (circular) quoted above, the claimant averred that they continue to be deprived of their entitlements, and benefits as contained in their letters of engagement and disengagement and the same had not ceased. They are also being deprived of the reinstatement as directed by the Civil Service Commission and this deprivation has not ceased. In such a situation of continuance of damage or injury which has not ceased, the defence is not available to the first defendant where such allegation of continuing damage or injury has been raised. In such a situation, it is incumbent upon me to take evidence before determining the point. The first defendants action falls squarely within this exception as the damage or injury against the claimant is a continuing one. See the case of A.G. Rivers Vs. AG. Bayelsa State 2013 3 NWLR (Pt. 1340) 123 at 148-150 paragraph F –A per Galadima JSC. Furthermore, public officers protection Act does not cover a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty as claimed by the claimant in this suit. The Civil Service Commission had directed the reinstatement of the claimant through a circular signed by Dr. Thorpe earlier referred to in this ruling. The duty of the first defendant is to comply as stated and expected by the claimant. Failure on the part of the first defendant to so comply makes the first defendant acting outside the colour of his office or outside his statutory or constitutional duty. The court must look into the issue and would not with a wave of hand deprive the claimant its legal capacity to ventilate their grievances. On the strength of all what I have said in this ruling, I hold that this suit is not statute barred by the provision of the public .officers protection Act laws of the Federation of Nigerian 2004 or the limitation law of the Federal Capital Territory Cap 522. The application of the first defendants therefore lacks merit and is accordingly dismissed. ----------------------------- Hon. Justice P.O Lifu (JP.) Judge