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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge TUESDAY 3rd DECEMBER, 2013 SUIT NO: NICN/ABJ/87/2013 Between: Umar Mukasa and 10 Others Claimant AND Federal Road Safety Commission of Nigeria and Another Defendant REPRESENTATION The 3rd, 10th and 11th claimant present, others absent, the defendant are absent Moses C. Ukachukwu Esq. for the claimants. Ikechukwu Odanwu Esq. with Tochukwu Akulilu and Onyekachi Ngwu Anyi Esq. for the defendant. JUDGEMENT By a notice of preliminary objection dated and filed on the 17th of July 2013, the defendant/applicant raised objections to the jurisdiction of this court on three Grounds; namely: (1) The suit is statute barred (2) The action was instituted wrongly (3) The court lacks jurisdiction to entertain this suit The defendant/applicant seeks for an order of this court dismissing and or striking out this suit for want of jurisdiction. In support of his objection, the defendant /applicant filed a written address wherein he raised and formulated a lone issue for determination as follows: Whether this action is not statute barred, thereby robbing the court of the jurisdiction to entertain the suit. It is the submission of counsel that the claimants were relieved of their appointment through a termination letter on the 25th of November 2009. All the properties of the defendants were consequently withdrawn from them. The claim in this case he submitted was filed on the 11th of April 2013, ie about three years four months after the accrual of right of action. Counsel contended that with this fact on ground the action of the claimant is statute barred by the provision of section 2 (a) of the public officers protection Act, laws of the Federation of Nigeria 2004 since that sections, prescription is to the effect that public officers are to be sued within three months from the date of the alleged occurrence of right of action and in this case the termination of appointment. Counsel invited the court to look at the originating summons and the statement of claim of the parties before the court in other to determine the jurisdiction of the court. He call in aid the case of Gafar Vs. Govt Kwara State 2009 4 NWLR (Pt. 1024) 375 at 403. Counsel further urged the court to look at the averment in the claimants statement of claim or facts or the endorsement on the writ of summons /complaint. He cited the cases of Umanah Vs. Attah 2005 12 NWLR (Pt. 938) 103; Ikine Vs. Edjerode 2001 18 NWLR (Pt. 745) 466 at 499. It is the contention of counsel to the defendant /applicant that since this suit was instituted outside the three months period prescribe by law, the cause of action has been extinguished and that there is no cause before the court. He referred the court to the case of Egbe Vs. Alhaji (1989) I NWLR (Pt. 128) 546 Ibrahim Vs. Kaduna JSC (1998) 12 Sc 20 at 31. It is the submission of counsel that Section 2 (a) of the public officers protection Act gives full protection or cover to all public officers or person engaged in the execution of public duties who at all material time acted within the confines of their public duty. He cited the case of Atiyaye Vs. Permanent Secretary, Ministry Local government Borno State 1990 I NWLR (Pt. 129) 728. Counsel submitted further that the defendants as sued are persons within the meaning of the public officers protection Act and as such are cover by the protection afforded by the provisions of the act as “person” means both artificial or natural person, a body that is statutory, a corporate aggregate or a legal personality, capable of suing and being sued . Counsel also contended that the claimants’ right of action, the right of enforcement and the right of judicial relief are no longer justiceable as the claimant has slept on his right for about 38 months. Counsel further contented that since this feature has rob the court of jurisdiction, the right of the claimant to maintain this action is totally lost. He referred the court to the case of Madukolu Vs. Nkemdilim (1962) 2 SCNLR 34, Forestry research Institute of Nigeria Vs. Gold (2007) 5 SC 213 at 225 – 256 . Hassan Vs. Babangida (2010) LEPLR SC 170 . Learned counsel also contented that Even the mode of commencement of this action is wrong as the suit is a contentions one that should not have been initiated by originating summons. Counsel therefore urge the court to dismiss or strike out this suit for being incompetent as the court lacks jurisdiction on the basis of statute of limitation. In his reply to the submissions of defendants /applicants counsel, Maxwell Opara Esq. learned counsel to the claimant/respondent filed a written address dated the 17th of August 2013. Learned counsel adopted the sole issue for determination formulated by the defendant /applicant and contended that the court should regard other grounds of the objections raised by the defendant/applicant as abandoned since counsel has failed to argue them. Counsel contended further that since the Claimants were disengaged from the services of the defendants and they were promise re-engagement, the aggregate facts or bundle of facts has not crystalised to give rise to a cause of action at the point of disengagement to enable or entitle the claimant sue but that the promise of re-engagement which forms part of the bundle or aggregate facts extended the time in which time begins to run to the 19th of April 2013 when the one month pre-action notice given to the defendant by the claimant expires. He call in aid the cases of Egbe Vs. Adefarasin 1987 18 NSCC (Pt. I) I. (1987) I NWLR Pt. 47 I SC Bello Vs. A.G Oyo State (1985) 5 NWLR Pt. 45 828 SC; Ajayi Vs. Military Administrator Ondo State 1997 5 NWLR Pt. 504 237. Womitoju Vs. Kiki 2009 16 NWLR Pt. 1166 143; P N. Uddoh Trading Co. Ltd Vs. Abere 2001 FWLR (Pt. 57) 900. Nigerian Port Authority Vs. Ajobi (2006) 13 NWLR (Pt. 998) 477 SC Counsel buttressed his submission further by the fact that it was the failed negotiation between the claimant and the defendants that made the claimant to institute this suit the time they did, suffice it to say that some of the disengaged staff, who were equally negotiating with the defendants were rein-stated while the claimants who were not reinstated instituted this action. Counsel mentioned the case of Welco Industriale S.P.A Vs. J. I Nwanyangwu and sons enterprises Nig. Ltd (without citation) to anchor the argument that negotiation operates to postpone the time statute of limitation start to run. Counsel also drew the court attention to the fact that public officers protection Act only applies to public officers in their individual capacity and not corporate persons. He cited the case of Momoh Vs. Okewale 1977 11 NSCC 365. Counsel urged the court to hold that the statute of limitation in question should not avail the defendants as it may avail the officer who committed the wrong in person. Counsel finally urges the court to discountenance the defendants submission and strike out the preliminary objection in the interest of justice. I have carefully read and perused through the pleadings of the claimant/ respondent, the preliminary objection of the defendant/ applicants and the written address 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 2 (a) of the public officers protection Act laws of the federation of Nigeria 2004. Jurisdiction of court 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. Furthermore, it is the claim in any particular case that determines the court in which jurisdiction is vested. In other words, it is the claimants claim that cloths the court with or denies the jurisdiction to adjudicate on a matter before it . Whatever is brought before the 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 and C. H. S. Co Ltd Vs. Migfo Nig. Ltd 2013 3 NWLR (Pt. 1333) at 555. Before looking at the relief and the claim of the claimants, what does section 2 (a) of the public officers protection Act says: Section 2 (a) of Public Officer Act (POPA) LFN 2004 Cap P 41 has this to say: “Where any action, prosecution, or other proceeding 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 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.SC Akwa Ibom State and Other 2006 LPELR 11564. Where it was held that for section 2 (a) of 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 that 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 default 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 defendant has satisfied these 2 conditions stated herein; (1) as a public officer (2) as one acting in a public office or duty. By the letter of dismissal, he was acting within the confines of a public duty. By the authority of FGN Vs. Zebra 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 includes artificial persons, public bodies or body of persons, corporate or incorporate, statutory bodies or persons. see the cases of Nwaogwugwu Vs. President FRN. (Supra) Ibrahim Vs. JSC Kaduna (Supra) Now, let us consider the claim and the reliefs of the claimants originating summons. (1) “A declaration of the Honourable court that the complainants appointments with the defendants are employment coated with statutory flavor” (2) “A declaration of the honourable court that the recruitment and termination of plaintiff employment with defendants are regulated by law and the defendants joint and several Acts not complying with the said laws to terminate the said appointment is wrongful, illegal and of no legal effect whatsoever” (3) “An order of the Honourable court re-instating the complainants into duties /service of the defendants with all full rights and privileges that would have ensured to the complainants but for the defendants wrongful dismissal” (4) “An Award of N4,000,000.00 (Four Million Naira) as general damages.” The originating summons containing the above reliefs being sought by the claimants/ respondent was filed against the defendant/applicant in the registry of this court on the 11th of April 2013. In the supporting affidavit to the originating summons, the claimants through one Yusuf Bashir Oliko , describing himself as the 1st complainant, though number seven on the court process, depose to some facts in which he claimed to have gotten the authority of other co-claimants and the advise of their counsel as follows: “That we had creditably discharged our duties till on 29th August 2009 then, one A.A. Abu of the 1st defendant and the ACM Admin and Human Resources Acting on behalf of the defendant purportedly claim to have terminated our appointment forth with (through ) a letter. Copy of letters are hereby attached as exhibit E1, E2, E3, E4, E5, E6, E7, E8, E9, E10 and E 11 respectively.” (19) “After the purported termination the defendant seized and confiscated our official uniforms, berets etc and enjoined to hold on as we will be re-instated after a while (20) “That some marshals terminated in like manner for instants (sic) Yusuf Tagwai (RM II), Adekanye Tokunbo Sunday (RMA I ) Aniokomadu Nnamdi (RMA I ) Moses Omardomi Scott (RMA I), Yahaya Adamu Bukpe (RM AII ), Shehu Usman (RM II), Saidu Alhassan (Rm ALL ) were later reinstated but we waited for our own re-instatement but to no avail and not even our several appeals with the defendants could make them re instate us.” I have carefully read and searched the processes filed by the claimant including the exhibits but could not see any document evidencing the alleged negotiation between the claimant and the defendant. I could not equally see where the defendant ever promised the claimant to the effect that they were going to be re instated. Besides that, assuming it is true that negotiations were going on and the claimants were being promised of a re-instatement orally, could it take over three years for the claimant to fold their hands and be waiting for an alleged promise of a re instatement? From all available authorities and from what I could gather from research, I have not laid my hand on any authority to the effect that a mere alleged promise of re instatement could prevent time from running for the purpose of making the application of public officers protection Act ineffectual. Rather, there are plethora of authorities to the effect that time begin to run when the claimants were given letters of termination as in this case. See the cases of Unillorin Vs. Adeniran 2007 NWLR Pt. 1031, 498 Odutota Vs. Unillorin 2005 All FWLR (Pt. 245) at 592. It is my view that time begin to run when all facts have happened which are material to prove the claimant case or entitle them to succeed. Paragraph 19 of the claimants affidavit in support captures the date of termination of appointment. Paragraph 19 talks about the defendant telling the claimants to hold on “for a while”. Can “for a while” mean three years? I don’t think so. The claimants counsel submitted that the failure of the defendants to re-engage the complainants forms part of the bundled of facts that constitute the cause of action as time begin to run when the one month pre action notice expires on 19th April 2013. I find it extremely difficult to comprehend this submission. If I may ask certain pertinent questions; (1) Has all the facts not happened on 25/11/2009 or 29 August 2009 when the claimants were served termination letters? (2) Why was the pre-action notice not issued and served on the defendant until after three years? (3) Why was this suit instituted before the expiration of the one month pre-action notice if the pre-action is anything to talk about? By the revelation and assertion in the claimants processes, the letters of termination were given to them severally on the 25th of November 2009. The writ of summons in this case was filed on the 11th of April 2013 ie about three years, four months from the accrual of right of action. The cause of action is still there but unfortunately the right of action has been extinguished by section 2 (a) of the public officers protection Act. The excuse given by the claimants to the effect that they were negotiating or that they were waiting “ or a while” for re-engagement or re instatement is not tenable. It is unfortunate that the claimant slept on their right only to wake up from their slumber and staggered to this court to look for complaint papers after about three years and four Months of receiving their termination letters when the law prescribe only three months to assert the right of action, right of enforcement and the right to judicial relief. See the cases of Akeem Vs. Unibadan 2003 10 NWLR Pt. 829 Pg. 584 Eze Vs. Okechukwu 2002 18 NWLR Pt. 799 at 348. This case bring to fore the need to review the call for the urgent review of the public officers protection law. A situation where a piece of legislation enacted principally by the colonial masters to protect their variegated interest bordering basically on perpetuation of their exploitative colonial interest in trying to subjugate the native subject should have no place in our statute book decades after our political independence. However, this is the law as at today. Until there is a change, our courts shall contine to apply it when the need arises. It is on this note that the duty on counsel becomes very weightier and heavier when it comes to the quality of legal advise given to their client to avoid unnecessary waste of time and material resources. In totality I hold that this case is statute barred by the provision of the public officers protection Act laws of the Federation of Nigeria 2004 and accordingly the suit is hereby dismissed. ----------------------------- Hon. Justice P.O Lifu JP. Judge