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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 21ST FEBRUARY, 2013 Suit No. NIC/ABJ/117/2011 BETWEEN JOHN ONALO ADAJI CLAIMANT AND FEDERAL MINISTRY OF TRANSPORT DEFENDANT REPRESENTATION C. D. Gyang Esq for the Claimant. N. O. Anya Esq for the Respondent. RULING By a complaint dated 16th December, 2011 and filed on 19th December, 2011 the Claimant claims against the Defendants as follows:- 1. The reinstatement of the plaintiff in the service of Defendant and or payment of all the plaintiff outstanding benefits from 2003 till date (which total sum from 2003 to 2010 is (N1,185,632.69) One million, one hundred and eighty-five thousand, six hundred and thirty-two naira, sixty-nine kobo). 2. The sum of N10,000,000.00 (Ten Million Naira Only) as general damages. 3. And 10% interest from the date of judgment till full satisfaction of judgment. Accompanying the complaint are the Claimant’s statement of claim, witness statement on Oath, list of documents and list of witnesses all dated 15th of December, 2011 and filed on 19th December, 2011. In this suit, the Respondent filed a Notice of Preliminary Objection dated 23rd of February, 2012 but filed on 14th March, 2012 challenging the competence of the action on the following issues:- 1. That the claimant action of the Claimant/Respondent as formulated against the 1st Defendant/Applicant in the Originating Summons is statute barred and the Honourable Court lacks the jurisdiction to entertain it. 2. That the lacks the locus standi to institute this action against the 1st Defendant/Applicant. The grounds of objection are predicated on the following:- A. That the action of the Claimant/Respondent against the 1st Defendant/Applicant is statute barred and offends Section 2 (a) of the Public Officers Protection Act, CAP P41, Laws of the Federation, 2004. B. The Claimant has no locus standi to institute this action against the 1st Defendant. That by 19th December, 2011, when the Claimant/Respondent commenced this action against the 1st Defendant/Applicant, the Contract of Appointment offered him had terminated by effluxion of time. A written address is also filed in support of the Preliminary Objection was also filed by the defendant on the same date. This case suffered series of adjournments because there were efforts made to see that the case is settled out of Court. After the hope was dashed by the failure of the defendant to make go its promises to resolve this suit, the Court ordered that the Preliminary Objection filed on 14th March, 2012 be moved so that progress could be made at hearing of the suit. In arguing the preliminary objection, the defendant/applicant submitted that the action of the Claimant/Respondent is statute barred and the Court therefore, lacks the jurisdiction to entertain it. Counsel referred to Section 2(a) Public Officers Protection Act, CAP P41, LFN 2004 which limits the period to file an action against a Public Officer within three months of the accrual of the cause of action. That the Section reads thus:- “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 allegation neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect. (a) 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 complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof”. He submitted that the cause of action which finally gave rise to the reliefs sought by the Claimant arose in 2003 but he decided to commence the action on 19th December, 2011. Counsel submitted that once an action is statute barred as in the present case four (4) things happened to the Claimant, namely:- (i) The Plaintiff has lost the right of action. (ii) The Plaintiff has lost the right of enforcement. (iii) The Plaintiff has irretrievably lost the right to judicial reliefs and (iv) The Plaintiff has an empty cause of action which no court will assist it to enforce. He cited the case of EGBE V ADEFARASIN (1987) 1 NWLR Part 47, pages 1 – 4, ratio 10. He also submitted that by virtue of Exhibit A, filed by the Claimant, the cause of action accrued on or about the 1st day of August, 2000 when his contract of appointment terminated by effluxion of time. That the claimant, came to court after a period of 11 years to seek redress against the Defendant, which is an Agency of the Federal Government. He submitted that the Claimant for commencing the action at this time as he did makes the action statute barred and ousts the jurisdiction of the Court to adjudicate on the matter. Counsel also submitted that the Defendant is an Agency of the Federal Government and a Public Officer is fully protected by the Act. Counsel also argued in this case that the Claimant has no locus standi to institute the action against the Defendant. To the counsel this is because by the 19th of December, 2011 when the Claimant instituted the action he was no longer in the Service of the Defendant. That the contract of appointment was for a period of 12 months and it terminated on its expiration. That the Claimant was offered the said contract of appointment on 1st August, 1999 and it terminated on or about 1st August, 2000. Counsel cited the case of ONUEKWUSI V THE REGISTERED TRUSTEES OF CHRIST METHODIST ZION CHURCH (2011) VOL. 198 LRCN, 140, 143 AND 146, on the criteria to be complied with for an action to be clothed with competence. They are:¬- 1. Existence or accrual of a cause of action. 2. Locus standi of a party suing. He concluded that the Claimant has no locus standi to sue the Defendant in the matter and therefore affects the jurisdiction of the Court. He urged the Court to hold so and consequently to dismiss the action. In his reaction, the Claimant filed a written address dated and filed 4th May, 2012 in opposition to the Preliminary Objection. In his response the Claimant submitted that:- That in answering ground one of 1st Defendant grounds of objection, the Court has to look at the entire processes filed by the Claimant including attendant exhibits to determine whether the action is statute barred or not. He submitted that a critical look at the processes particularly statement of claim shows that the Claimant was treated with bad faith for having been employed without letter of employment. That it was after he protested to be National Human Rights Commission that 1st Defendant changed its decision. Counsel further submitted that even as at the said contract of employment made available to Claimant, 1st Defendant has no right under the law to subject workers to such treatment. He submitted that such arrangement amounts to slavery which the Permanent Secretary even noted in his remarks to the Claimant and his fellow workers. Counsel went further to submit that the Claimant suffered this treatment more due to his complaint to the 2nd Defendant. He said that a look at what ought to be the letter of employment or the said contract of employment shows that 1st Defendant could not meet the terms specified thereto. It is the submission of the Claimant also that what the Claimant suffered from 1st Defendant amounts to an abuse of official power of a public officer such acts cannot be protected by the provision of Section 2 (a) of the Public Officers Protection Act, Laws of the Federation of Nigeria, 2004. He referred to the case of Okeh V The Nigeria Navy (2007) 25 WRN 46, the issue was whether Public Officer can be sued outside limitation period of three months and the Court held as follows:- “It is also, however crystal clear and well settled that Public Officers can be sued outside limitation period of the months and loose the protection of the act, if:- a. He acts outside the confines of his duty or b. He acts without good faith, abuse of his office or without legal justification. See also the cases of Nwankere V Adewunmi (1966) SC NLR; 1966 ANLR 129; NNLR 451; Ofoboche V Ogoja Local Government (2001) 36 WRN, (2001) 16 NWLR (Pt. 739) at Pg. 458”. Counsel then submitted that in consideration of the above authorities, the action of claimant is not statute barred. Counsel went further to submit that by virtue of Section 7 (1) of the National Industrial Court Act, 2006, this Honourable Court has jurisdiction to entertain this matter of which Claimant action is a labour matter. When the issue involves labour dispute, associated with salaries or payment of work done cannot be caught up by limitation laws. He then referred to the case of Ogbide & Ors V Johnson Air Ltd (2011) 22 NLLR; (Pt. 61), Pg. 58 at 63 and the case of John Ovoh V The Nigeria Westminister Dredging & Marine Ltd, unreported suit No. NIC/9/2002 delivered on 1st April, 2008. That from the above the submission it is very clear that the action of Claimant is not statute barred. That notwithstanding above, Claimant terms of employment or what the employment ought to be was breached with impunity. He submitted that it will be better that this application is dismissed so that this matter will be determined on its merit. I have carefully considered the issues raised in the Preliminary Objection, the submission of the counsel and authorities cited by counsel for both parties. The Respondent counsel is praying the Court to dismiss the action because it is statute barred having been instituted against the Defendant, a Federal Government Agency a Public Officer outside the three (3) months prescribed by law, and after the occurrence of the event contrary to Section 2 (a) of the Public Officer Act. In order to ascertain if the action of the claimant is statute barred and incompetent, the Court will examine the statement of claim and the complaint. On the face of the complaint which was used by the claimant to initiate this suit against the defendant, it was filed on the 19th December, 2011 when the cause of action arose in 2003. By single calculation the claimant filed his action after a period of 11years. As seen the defendant has relied on Section 2(a) of the Public Officers Protection Act to say that the action is statute barred and that the defendant is an Agency of the Federal Government and so a Public Officer which is protected by the Act. The counsel to the claimant did not dispute the fact that the defendant is an Agency of the Federal Government and a Public Officer, but that he cannot be availed of the protection under the provision of the Act because the defendant acted outside the scope of its duties, in abuse of its official power and in bad faith. Counsel referred to the case of Okeh V Nigeria Navy (2007) 25 WRN 46. In my view both counsel are right when they said that the provisions of Section 2(a) of the Public Officers Protection Act protect officers who acted in good faith in the discharge of the duties or exercising the authority in the course of performing the functions of the offices. However, the provisions of this Act have been held not to apply or avail Public Officers who act in bad faith or abuse the authority of their offices, outside their functions or powers conferred on them. See Offorboche V Ogoja Local Government (2001) 7 SCNJ 468. It is the duty of the claimant to proof that the defendant acted in bad faith and in abuse of its authority or office for the defendant to be deprived of the protection of the Act. In doing this the claimant claims that the defendant abused its official power and acted in bad faith for employing him without a letter of employment. He claimed that he was issued one after a protest to the National Human Rights Commission and that up till now his official file in the Ministry is still missing. He is also alleging that his letter of termination as stated in paragraphs 6, 10, 11, 16, and 18 of the statement of facts has not been served on him. From the above findings, in my view the claimant has been able to establish that the defendant acted in bad faith and in abuse of its official powers. In that Section 7 of the Labour Act provides that not later than three months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement of terms of the contract of employment. The claim of the claimant that his file has been declared missing since the beginning of this trouble up till date has been confirmed by the counsel representing the defendant as the counsel could not laid his hands on the file. I will not want to go into the merit of the case but I am convinced that the provision of Section 2(a) of Public Officers Protection Act will not avail the defendant in this instant case because it has acted outside the scope of its authority and in bad faith. For the reasons given above, the Preliminary Objection of the defendant fails and is hereby dismissed. The matter will proceed to hearing. Ruling is entered accordingly. _____________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE