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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 10th November, 2014 SUIT NO: NICN/ABJ/80/2014 Between: Mr. Vincent Agha Ohia Claimant And The Honourable Minister of the Federal capital Territory and two Others Defendants REPRESENTATION Claimant present; Defendant absent; Elumah Thomas Esq. with Victor C. Orizu Esq. For the complainant respondent. H.O Odigbo Esq. for the 1st -3rd defendants. RULING By a Notice of Preliminary Objection (NPO) undated but filed on 10th June 2014, the defendant s objected to the jurisdiction of this court on the following grounds. (1) That the court lack the jurisdiction to entertain this suit having been brought outside the three months limitation period provided under section 2 (a) of the POPA Cap P 41 LFN 2004 (2) That the court lacks the jurisdiction to entertain this suit as anything done by an appropriate officer under section 3 (3) of public officers special provisions Act Cap 381 1990 cannot be enquired into by the court. The application is supported by a four paged written address wherein the applicant postulated two issues for determination namely: (1) Whether this suit was commenced within the statutory period against a public officer. (2) Whether the court can enquire into anything done by an appropriate authority under the public officers (special provision Act) Cap 381 LFN 1990. In this argument counsel contended that jurisdiction is a lifeline for continuing any proceeding and therefore a threshold issue. Counsel defined a “public officer” to mean any person who holds or has held any public office… in the public Service of the federation or of a state in accordance with section 4 (1) (a) of public officers (Special provision) Act. Counsel submitted that the court always look at the writ and the statement of claim to determine the date of accrual of right of action. Counsel cited the case of Olabanjo Vs. Dawodu 2006 27 NSCQR 353; counsel further contended that a statute of limitation such as POPA removes the right of judicial relief, the right of enforcement of the claimant and leaves him /her with an empty and bare cause of action which he cannot enforce – He cited the cases of Ogun State Govt. Vs. Danlami Nig Ltd 2007 29 NSCQR. Counsel further submitted that the cause of action in this case accrued or accrued or the wrong complained of by the claimant happened in 1996 while the claimant wrote his first complaint in form of a letter in 2007 which is a period of 11 years in between. On issue two submitted for determination by the counsel, counsel submitted that the military government under decree 17 of 1984 which is the public officers (special provision) Act Cap 381 LFN 1990 had power as at then to dismiss or remove a public officer from or to retire him from public service compulsorily and as such under section 3 (3) of that Decree No. 17 of 1984, no court have jurisdiction to enquire into such dismissal retirement or termination. He submitted further that once the act of the public officer conforms with the provision of the said Decree strictly, no court can require into such act of a public officer. Counsel cited the case of NEPA Vs. Ososanya 2004 17 NSCQR 275 -276 Counsel finally urged the court to strike out this suit or dismisses it for lack of jurisdiction. In response to the Notice of Preliminary Objection(NPO) of the defendant /applicant, the claimant /respondent filed a 12 paragraphs affidavit deposed to by the claimant himself and a written Address of 5 pages wherein he formulated two issues for determination namely: (1) Whether this suit commenced within the statutory period against a public officer. (2) Whether the court can enquire into anything done by an appropriate authority under the public officers special provision Act Cap 381 LFN 1990. On issue one, counsel argued that what determines jurisdiction is the writ of summons and the statement of claim, He referred to the case of Josiah Adetayo Vs. Ademola 2010 All FWLR Pt. 533 at 1806 at 1809; counsel also referred to the case of Aghide Vs. Tason Air Ltd 2009 NLLR Pt. 61 at P. 59 at 63. Counsel referred also to the claim on the statement of facts of the claimant as reflected in paragraph 4 a- d and urge the court to hold that they are labour related, as salaries and payment for work done cannot be statute barred. Counsel contended that it is the duty of the defendant to proof what it asserts and since they asserted that the claimants employment was terminated and there is no evidence of such, it has not complied with section 131 of the evidence Act 2011 as amended; counsel also urged the court to hold that since the applicant has shifted to the direction of facts from the direction of law without filing any affidavit to his Notice of Preliminary Objection (NPO), the court should strike out the NPO. Counsel cited the case of Universal Trust Bank Vs. Ozoemena 2007 All FWLR Pt. 358 at 1014 at 1019. The applicants Notice of Preliminary Objection (NPO), counsel submitted was design to waste the time of the court and that court have been frowning at such processes. Counsel cited the case of PDP Vs. Atiku Abubakar 2007 All FWLR Pt 386 697 at 700. On issue two counsel referred to section 6 (4) (J) of the 1999 constitution. as amended and urged the court to hold that this court is vested with judicial powers to try labour disputes. Counsel contended that the parties are no longer under military dispensation and the defendants have sworn to uphold and defend the constitution of the Federal Republic of Nigeria and as such he cannot turn around to breach it without providing the reasons for the act of dismissal or the act of not forwarding the said letter of termination or dismissal; Counsel urged the court to dismiss the Notice of Preliminary Objection(NPO). I have gone through the various submissions of the learned counsel for the parties and the authorities cited. The central issue is the objection of the defendant/applicant on the jurisdiction of the court to entertain the suit of the claimant as constituted. It is the claim in any particular case that determine jurisdiction of court. In other words it is the claimants claim that clothes the court with or denies it 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 the trial court is competent to entertain or adjudicate on the matter. The court should not examine the defence at all even if one has been filed in accordance with the rules of court. This is trite law; but for avoidance of doubt. See P. & CHS co. Ltd Vs. Migfo Nig. Ltd 2013 3 NWLR Pt. 1333 at 555. What then is the claim before the court for the purposes of jurisdiction: the complaint papers and the statement of facts reads; (1) “A declaration that the claimant is entitled to his outstanding salary from February 1999 till 12th day of December 2013 the sum of N500.000.00 (Five Hundred thousand Naira only ) from the 2nd defendant having worked for the 2nd defendant under letter of employment ref. No. PF APP/11462/9. (2) The sum of Five hundred thousand naira only (N500,000.00) as General damages (3) An order restraining the 1st, 2nd & 3rd defendants from terminating the claimant employment (4) An order directing the 1st , 2nd & 3rd defendants to pay the claimant the sum of N100,000.00 (One Hundred thousand naira only ) being the cost of prosecuting this matter. (5) And for such further orders as this honourable court may deem fit to make in the circumstances”. The above claims do not reflect anything about termination of employment as canvassed by the defendant /applicant for the purposes of invoking a limitation law of 3 months or for the purpose of Decree 17 of 1984. The claimant is claiming the salaries from February 1996 as a staff of the defendants. The defendant has raised the defence of termination of employment since 1996 in his written submission. Counsel argument cannot be regarded as a fact before the court since he has not filed any affidavit in support of motion or any statement of defence. Even if he has raise it in any statement of defence, the law is that I cannot look at the defence at this stage. This is trite law. Moreover, cases relating to issues of work done wages or salaries earned are classified as an exception to the application of the public officers protection Act Cap P 41 LFN 2004. In case it is considered as a continuing injury i.e the cause of the injury is still on, What is the cause of the injury? The nonpayment of the salary of the claimant has not stopped from month to month. In my view, the claimant continue to be deprived of his salary of which he is entitled to from month to month or every month and the same had not ceased. In such a situation of continuance of damage or injury which has not ceased, the defence is not available to the defendants. Where such an allegation of deprivation of salary has been raised, in such a situation, there is the need for the court to take evidence before determining that point; I cannot therefore determine this claim in limine The court must look into the issue and would not with a wave of hand deprive the claimant the legal capacity to ventilate his grievances. The claimant who is claiming for the backlog of unpaid salaries has insisted that his contract of employment subsist with the defendants; these are issues for trial and the court should open its doors for citizen to access it accordingly. See the recent case of AG Rivers State Vs. AG. Bayelsa State 2013 3 NWLR (Pt. 1340) SC 123. Where the court held; The Act is intended as much as within the limits of the law to protect a public officer from destruction and unnecessary litigation but never intended to deprive a party of legal capacity to ventilate his grievances on the face of stark injustices. That is why, where officers or heads of the agencies of the Federation or state are protected;………. Exception are prescribed by the Act” On the issue of Decree 17 of 1984; I do not think, this is the right time to comment on this legal issue since the claims of the respondent is not statute barred. This is so because, the defence (which I cannot look at, at this stage even if it is available has not provided the court with any instrument of termination of appointment. There is nothing for the court to see, evaluate or even make a finding. Moreover, it is quite premature at this stage to even make a finding, or evaluation as such issues are determine after trial. Accordingly I hold that the Notice of Preliminary Objection (NPO) of the defendant fails and it is dismissed with N30,000 cost against the defendant which shall be paid before the next date of adjournment. The case shall proceed to trial. ----------------------------- Hon. Justice P.O Lifu JP. Judge