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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: 17TH SEPTEMBER, 2014 Suit No. NIC/ABJ/315/2013 BETWEEN MR. IGHO ANDY K. EJEMEYOVWI CLAIMANT AND 1. FEDERAL INLAND REVENUE SERVICE 2. THE EXECUTIVE CHAIRMAN FEDERAL DEFENDANTS INLAND REVENUE SERVICE 3. THE HONOURABLE ATTORNEY GENERAL OF THE FEDERAL REPUBLIC OF NIGERIA 4. THE HONOURABLE MINISTER FOR FINANCE FEDERAL REPUBLIC OF NIGERIA 5. SAMUEL S. OGUNGBESAN REPRESENTATION Emeka Okoro Esq with Steve Eke Esq for the Claimant. A. A. Malik Esq with N. Omewa Esq for the 1st, 2nd & 5th Defendants. Nwachukwu O. V. Esq for the 3rd Defendant. Udo Archibong Esq for the 3rd Defendant. RULING/JUDGMENT By way of originating summons the claimant claims against the defendants nine reliefs. The Plaintiff claims as follows:- 1. A DECLARATION that the Acting Executive Chairman of the Federal Inland Revenue Service has no powers in any circumstance to constitute the Board of the Federal Inland Revenue Service for the purpose of performing functions relating to the appointments, confirmation of appointments, removals and tenures of Coordinating Director of the 1st defendant so as to be able to determine or in any manner interfere with the appointment of the Plaintiff as Acting Coordinating Director of the 1st defendant on the recommendation of the 2nd defendant. 2. A DECLARATION that the Acting Executive Chairman of the Federal Inland Revenue Service cannot exercise any of the powers of the Board of the Federal Inland Revenue Service, whether alone or in conjunction with all of some of the Directorate cadre and/or Management staff of the Federal Inland Revenue Service so as to be able to determine the Plaintiff’s tenure or in any manner interfere with the appointment of the Plaintiff as Acting Coordinating Director of the 1st defendant which appointment was made by the last constituted Board of the 1st defendant on the recommendation of the 2nd defendant. 3. A DECLARATION that all appointments of Coordinating Directors made by or at the instance of the Acting Executive Chairman of the 1st defendant in the absence of a Board of the 1st defendant are null and void and of no effect whatsoever. 4. A DECLARATION that the purported retention of the 5th defendant as Coordinating Director of the 1st defendant and his purported deployment as Coordinating Director (Standards and Compliance) is null and void and of no effect as the 5th defendant, after retiring from the service, has served out his 3 year term as Coordinating Director and the said term has not been renewed by the Board of the 1st defendant, there not being any constituted Board. 5. A DECLARATION that the Plaintiff is still Acting Coordinating Director of the 1st defendant having been so appointed by the last constituted Board of the 1st defendant on the recommendation of the 2nd defendant. 6. A CONSEQUENTIAL ORDER that the Plaintiff be accorded all his rights, emoluments, privileges and entitlements due to and accruing to him as Acting Coordinating Director (Standards and Compliance) of the 1st defendant. 7. AGGREVATED AND/OR exemplary damages of N800 Million against the 1st & 2nd defendants for cruel, high handed, illegal, flagrant, insolent and oppressive Acts committed against the Plaintiff in the course of his employment as Coordinating Director of the 1st defendant. 8. AN ORDER mandating the 4th defendant to direct the Acting Executive Chairman of the 1st defendant to keep strictly within his powers and duties as the Executive Chairman of the 1st defendant and to refrain from purporting to exercise the powers of the Board of the 1st defendant in matters relating to the Plaintiff’s position as a coordinating Director of the 1st defendant. 9. SUCH FURTHER OR OTHERS ORDERS as the Honourable Court may deem fit to make in the circumstances. The defendants reacted each filing a preliminary objection against the claims of the claimant by way of Motion on Notice. The 1st, 2nd and 5th defendants/applicants filed a joint preliminary objection urging the court to dismiss the suit in its entirety on the grounds amongst others that:- 1. That the claimant suit is caught up by statute limitation or the Public Officers Protection Act as preserved by Sections 38 and 55 of the Federal Inland Revenue Act 2007. 2. That the cause of action if any cannot be construed as a trade dispute within the contemplation of Trade Dispute Act 1992. 3. That the originating summons procedure adopted by the claimant in this suit is unsuitable and irregular for a decision or pronouncement on issues touches on or relating to wrongful termination of employment. 4. The suit therefore is fundamentally defective and incurably incompetent. 5. This court is strict of the necessary vires or jurisdiction to adjudicate over this case. In support of the preliminary objection the 1st, 2nd and 5th defendants/ applicants raise three issues:- 1. Whether the suit is not caught up by the provisions of the Public Officers Protection Act. 2. Whether Originating summons procedure is appropriate to commence this action. 3. Having regard to the provision of section 254 (c) of the 1999 Constitution (as amended) read together with section 7(1) of the National Industrial Court Act CAP N155 LFN 2004 and the Trade Dispute Act 1992, whether this Honourable Court has the jurisdiction to determine the questions posed by the claimant. In arguing issue no.1, which is whether the suit is not caught up by the provision of Public Officers Protection Act , reserved by sections 38 and 55 of Federal Inland Revenue Service Act 2007 the applicants submitted that a cursory reading and perusal of the affidavit in support of the originating summons read together with the relief sought there shows that the cause of action If any in this case accrued or aggregated on 10th July, 2013 when the claimant was served with a letter of the same date by the 1st defendant. They refereed to the position of the claimant in supporting affidavit to paragraphs 1, 15, 18, 21, and 22. They submitted that the net effect of the paragraphs is that the cause of action of the suit arose on the 10th July, 2013 when the 1st defendant directed the claimant to hand over to the most Senior Director under him having attained the statutory Age of retirement. That effectively the claimant’s employment with the 1st defendant came to an end on the said 10th July, 2013. They submitted also that the claimant appreciated the full purport, and full implications of the defendant’s letter from the time he received the letter he started to make representation to the 1st, 2nd and 4th defendants appealing to them for a renewal of his appointment. They also submitted that from the official inducement of the originating summons it can be gleaned that this action was field on the 22nd of November, 2013. Meaning therefore, that took the claimant more than four months or thereabout to approach the court to ventilate his grievance against the defendants. He submitted that the point being made is that the time within which the claimant is allowed to commence this action had elapsed. To this end the general principle of law is that where a statute has prescribed the period for the institution of an action, any proceeding brought outside such prescribed period will be totally barred and the right of the plaintiff will have extinguished. See Ibrahim V J. S. C. (1998) 14 NWLR (Pt. 584) P. 1 and Egbe V Adefaransin (No. 2) (1995) 1 NWLR (Pt.3) 549. That applying the principle above, to the instant case, certain on the disputable facts emerge they are:- 1. The originating summons in this case was filed on the 22nd of November, 2013. 2. The claimant’s cause of action arose or accrued or aggregated on the 10th July, 2013. 3. That by a combined reading of sub-paragraphs 1 and 3 above this suit was filed more than four months after the operative time. Viewed from which ever prism the suit is caught up by the Public Officers Protection Act and leaves the claimant with a bare, hollow ineffective, ineffectual and baseless cause of action which cannot be countenanced by any court of law. The jurisdictions of this court effectively been washed away by the incompetent suit. On the whole they urged the court to resolve the issue in favour of the defendants objector. In arguing issue 2, which is whether the originating summons procedure is appropriate to commence this action they submitted that under and by virtue of the provisions Order 3 Rule 5A of the National Industrial Court 2007, originating summons is only permitted to be used where there are no dispute as to the facts or where the issue is controversy borders and touches on interpretation of statute or document or terms of contract. From the provisions of the above mentioned rules it is clear that originating summons proceedings cannot be used where there are contested or there is likely hood that the proceedings would be hostile and requiring that evidence be led or adduced in support of facts asserted. That from the features on texture of the case the claimant has employed the wrong proceedings to commence his action. That the law is that where the court finds that an originating summons should not have been used as in the instant case, it ought to strike out the case. See the case of Emezi V Osuagwu (2005) 12 NWLR (Pt. 939) 340 at 369 where the held:- That originating summons stands no chance of conversion to a writ of summons and ought to be struck out. That situation with this case borders on wrongful termination of employment/appointment it is improper to initiate an action by originating summons. That this suit is such that cannot be resolved without calling oral evidence. Again the defendants urged the court to hold that the suit is defective and liable to be struck out. As regard the 3rd issue, whether the provisions of Section 254( c) of the 1999 Constitution (as amended) read together with Section 7(1) of the National Industrial Court Act, CAP N155 LFN 2004, and the Trade Disputes Act 1992, whether this Honourable Court has the jurisdiction to determine the questions posed by the claimant. They submitted that the principle of law is to the effect that the law which creates a court also delineates its area of competence and or jurisdiction. That the courts of law are also bound by the provision of the constitution and the statute which vest jurisdiction in them. They cannot go outside the jurisdiction expressly conferred or vested in them. Section 254 (A) of the constitution establishes the National Industrial Court of Nigeria while Section 254(C) sets out in details a jurisdiction of the court. For the court to exercise jurisdiction in respect of a dispute it must be established that the dispute can be accommodated within the limits of the provisions of Section 7(1) of National Industrial Court Act and Section 254(C) of the Constitution which have vested exclusive jurisdiction in the court to hear Civil causes relating or connected with trade disputes or employment. If a court finds that the disputes falls outside the confines of the provisions the court must decline jurisdiction. The states of the case of the claimant which is that his appointment as a “Coordinating Director” with the 1st defendant was determined wrongly. Much of the paragraphs of the affidavit in support of the originating summons are sync with this assertion. It is clear from this paragraphs that the claimant employment has been rightly or wrongly determined. Based on the foregoing, there is no trade dispute between the claimant and the defendants has the claimant can no longer be described as a worker within the contemplation of Section 48 of the Trade Disputes Act. Therefore, the court is divested of any jurisdiction to entertain the suit. In conclusion, on the strength of the arguments canvassed in the preceding paragraphs the court is urged to strike out the suit with substantial cost in favour of the 1st, 2nd and 5th defendants. Relying on the case of Osoh V Unity Bank Plc (2013) All FWLR (Pt. 690) 245 which they claimed is on all fours with this claimant’s case in terms of the cause of action is on wrongful termination. The point being made by the defendants is that the case of the claimant as presently constituted does not vest any jurisdiction in the court and that the only thing left for the court to do is to wash its hand clean of the defective and incompetent suit by striking it out. To the 1st, 2nd & 3rd defendants’ jurisdiction is the pillar upon which any adjudicatory process is built. That where a court lacks the jurisdiction to entertain a case it builds on a quick stands if it proceeds with the matter. In reaction to the 1st, 2nd & 5th defendants’ preliminary objections the claimant filed a written address in opposition. The claimant formulated four issues for determination in his reaction to the preliminary objection filed by 1st, 2nd, and 5th defendants/applicants:- 1. Whether this present application does not amount to demurer. 2. Whether a final decision has been taken on the questions of the claimant’s agitation by any of the defendants to invoke the provisions of the Public Officers Protection Act and if a final decision has been reached, what is the effective date of that decision for purposes of the application of the provisions of the Public Officers Protection Act. 3. Whether this suit is liable to be struck out on the ground alone that it was commenced via originating summons instead of writ of summons. 4. Whether the facts of this case does not donate a cause of action to the claimant having regards to the entire circumstances of the case. The claimant’s respondent argument on issue 1, is that the demurrer is no longer allowed by the court and has thus been abolished. The applicants upon being served with the originating process quickly filed the preliminary objection seeking to kill the suit. The rules of this court as well as decided cases enjoins the defendants who intend to rely on any law as a defend must file a statement of defence or as in this case a counter-affidavit to the originating summons and raised such points of law or contract therein. That failure to file a counter-affidavit to join issues with the claimant and raised whatever points of law the applicant thinks he has in his favour means that the applicant has admitted all the facts contain in the claimant affidavit that in this circumstance the present application amounts to a demurrer. The present suit having been commenced through originating summons the applicants were expected to have filed his counter-affidavit to the claimant’s affidavit and raised any points of law the so wish before bringing this application. That having not done so he urged the court to hold that the procedure is not proper. He therefore urged the court to dismiss the applicant preliminary objection in that score. The claimant argument on issue 2, that for the preliminary objection to apply to the present case it must be shown that any of the defendants reach a final decision on the questions the claimant raised. That time will begin to run against the claimant from the beginning of the effective dates of such final decision and not otherwise. It is not in dispute that the claimant voluntarily retired from the 1st defendant’s service on the 13th of May, 2013. Thus the question of the claimant’s retirement is not in neither in dispute nor the issued of contention. However, what is in issue is the confirmation of the claimant as Coordinating Director of Standards and Compliance group upon his retirement which the 1st defendant and indeed any of the defendant failed to make any pronouncement on. That the 1st and 4th defendants having failed to make any pronouncement on the question of the position of acting Coordinating Director Standards and Compliance which the clamant has sought to comment on having validly raised issue in his letter of 13th May, 2013 it reminds a live issued. Time at not run against it until it has been addressed one way or the other by the relevant parties. The claimant further argued that there is no document whatsoever before this court on the applicant showing that the 1st or 4th defendant confirmed or refused to confirm the appointment of the claimant as Coordinating Director of Standards and Compliance other than that they accepted the claimant’s offer of resignation, which was separate and distinct form his request to be confirmed as Coordinating Director of Standards and Compliance group of the 1st defendant. The claimant contended that what is important in the suit was not his retirement which he voluntarily requested for but his right to retire into the position of Coordinating Director in accordance with the practice obtainable with the 1st defendant. That any serving or retired staff of the 1st defendant could hold the position of Coordinating Director. He cited the examples of a retire staff who held such position to be 2nd and 5th defendants. That it is difficult to see how time can beginning to run against the claimant when main issue he is contending has not been addressed by the 1st or 4th defendant. That 10th of July, 2013 cannot be the effective date of the decision for the purposes of calculating time against the claimant. Thus, by the provisions of the Public Officers Protection Act, time will only beginning to run against the claimant from 23rd August, 2013 and not 10th July, 2013 has alleged by the applicants which is latest in time and thus superceded the 1st defendant letter of 10th July, 2013. The letter was never brought to the notice of the claimant by the 4th defendant till months after the institution of this suit. The claimant also contended that he served the 1st defendant a pre-action notice in compliance with Section 55(3) and (4) of the 1st defendant Act signifying his intention to sue the 1st defendant and also commenced the process of litigation against them in earnest. The claimant submitted that having served a pre-action notice time can only start to run against the claimant only upon the expiration of the pre-action notice. The claimant then submitted the Public Officers Protection Act cannot apply to defeat the claimant action in this case because the effective and final decision from the 4th defendant which would have distinguished the claimant quest to occupy the office of Coordinating Director, Standards and Compliance was not made and if made was not communicated to the claimant. It is also the contention of the claimant that questions bordering on contracts and not within the categories of matters covered by the provisions of Public Officers Protection Act. Relying on the case of Oduko V Ebonyi State (2004) 13 NWLR (Pt. 891) Pg. 487 Para. 504. The claimant urged the court to so hold. The claimant argument on issue 3, whether this suit is liable to struck out on the ground alone that it was commenced via originating summons instead of rate of summons submitted that the rules of this court make provision for originating summons as one of the modes of commencement of action before the court. He referred specifically to Order 3 Rule 5a of the rules of the court. That the question submitted by the claimant is for the interpretation of certain sections of the statute setting up the 1st defendant which brings the claimant’s action within the originating summons procedure as stipulated by the rule of the court. That the applicant having failed to file a counter affidavit challenging the facts have admitted all the facts stated by the claimant and cannot say that the proceeding would be hostile. The claimant submitted that the court is enjoined to order that originating summons be converted to a writ of summons where originating summons was wrongly employed. That should be treated as irregularity. On issue 4, the claimant submitted whether the fact of this case do not donate the cause of action having regard to the entirely circumstances of the case. Claimant submitted that the further affidavit reveal that the claimant has a cause of action in the suit. In that the claimant is saying the practice of the 1st defendant is that the position of coordinating Directors are reserved for persons either still serving or those staff of the 1st defendant who have retired from service. All this facts where not controverted by the applicant has they did not filed the counter affidavit. That the refusal of the 1st and 4th defendants to affirm or decline the affirmation of the request of the claimant in line with the existing practice and precedent in the service of the 1st defendant donates a cause of action to the claimant. Lastly, on the 5 issue, that the applicant has argued erroneously that this court cannot entertain the suit of the claimant because it is not a trade dispute and there is no longer exist a relationship of employer and employee between the claimant and the 1st defendant, claimant referred to the provision of Section 254C (1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) arguing that it would be difficult to see how the claimant’s action cannot fall within the jurisdiction of the court. Contending further that the question for the court to answer is:- Is the claimant’s claim or action related or connected with employment or matters arising from work place or matters incidental thereto or connected therewith. Counsel argued further that all the facts given rise to the claimant’s action are related and connected with his employment or matters arising from work place or incidental thereto or connected therewith. That the law has granted the court jurisdiction to entertain causes and matters relating to or connected with employment arising from work place incidental thereto and connected therewith. On the whole the claimant urged the court to dismiss the applicant preliminary objection. The 3rd defendant/applicant filed its preliminary objection dated 13th December, 2013 challenging the jurisdiction of the court to hear and determine same and urged that the matter be dismissed. The grounds upon which this application is brought are as follows:- a. The suit is statute barred. b. The subject matter of the plaintiff’s case are arose on the 10th July. 2013. c. The plaintiff approached this Honourable Court on the 22nd of November, 2013. The 3rd defendant then prayed the court for:- An Order dismissing the plaintiff originating summons. In the 3rd defendant written address in support of the preliminary objection only one issue was raise for determination which is:- Whether the action of the claimant is not caught up by the limitation statute. In arguing this issue the 3rd defendant/applicant raised the following questions:- 1. Are the defendants Public Officers within the contemplation of Public Officers Protection Act? 2. When did the time start to run? 3. Is the action statute barred? The 3rd defendant/applicant submitted answers to the above questions in the affirmative. The 3rd defendant submitted it is settled law on the strength of the Supreme Court authority in the case of Ibrahim V Judicial Service Commission, Kaduna State (1998) 14 NWLR (Pt. 584) Pg. 1 that all the defendants, the Attorney-General of the Federation, the Honourable Minister of Finance, The Executive Chairman Federal Inland Revenue Service are Public Officers within the contemplation of the Public Officers Protection Act. The 3rd applicant submitted that the plaintiff alleged denial of his position and as prescribed for his category of staff as averred in paragraph 22 of the plaintiff’s affidavit in support arose on the 10th July, 2013 period of 3 (three) months and 10 days more than three months allowed under Section 2(a) of the Public Officers Protection Act. The Plaintiff action in consequence is statute barred and this Honourable Court lacks jurisdiction to entertain the suit. That the statute is applicable to both public officers and public authorities and renders any suit commenced after three months period statute barred which should be dismissed. In support of his assertion counsel relied on the case of William Olagunju & Anor V Power Holding Company of Nigeria Plc (2011) 4 SCNJ 192 at p. 202. The 3rd applicant also submitted that all the necessary facts needed to determine the applicability of Section 2(a) of the Public Officers Protection Act have been provided in the statement of claim and the defendants can raise a point of law in limine on the matter without first filing a defence on the authority of Texaco Panami Inc. V Shell Petroleum Dev. Corp. of Nig. (2000) 4 NWLR (Pt. 653) 480 at 490. The 3rd applicant further submitted on the authority of Goodwill Company Ltd V Calabar Cement Company Ltd (2010) 16 NWLR 108 at 144. Where an action as been held to be statute barred the proper order to make is that of dismissal and not striking out the action. In conclusion the 3rd applicant submitted that the defendants being Public Officers within the meaning of Section 2(a) of the POPA and the action having commenced more than three months after the cause of action the claimant cannot in law bring the action. He urged the court to dismiss the suit with substantial cost for being statute barred and for disclosing no cause of action against the defendants especially the 3rd defendant. The claimant reacted to the 3rd defendant preliminary objection raising a lone issue as to whether the claimant’s suit is caught up by the Public Officers Protection Act. In arguing this lone issue the claimant submitted that for the provisions of the Public Officers Protection Act to apply, it must be shown that the action of the particular Public Officer in question has caused damage/injury to the claimant. That in the present case, for the provision of the Act particularly Section 2(a) to apply it must be shown that any of the defendant have reached a final decision on the question the claimant submitted to the court for adjudication. It is such final decision that will occasion the damage/injury that will donate a cause of action on the claimant on the one hand and afford the public officer protection on the other hand. Thus, time will beginning to run against the claimant from the effective date of such final decision and not otherwise. The claimant submitted that the 1st defendant and the 4th defendant having failed to make any pronouncement on the question of the position of Acting Coordinating Director, Standards and Compliance which the claimant had sought them to comment on, having validly raised the issue in the letter of 13th May, 2013, it remains a live issue, and time cannot run against it until it has been addressed one way or the other by the relevant parties. Claimant contended further that there is no evidence whatsoever before this court showing that the 1st & 4th defendants confirmed or declined to confirm the appointment of the claimant as Coordinating Director, Standards and Compliance. Claimant argued that it is therefore difficult to see how time can begin to run against the claimant when the main issue in contention has not been addressed by the 1st or 4th respondents. To the claimant the 10th July, 2013 cannot be the effective date of the decision for the purposes of calculating the time against the claimant. That the 4th defendant through the Permanent Secretary, Ministry of Finance replied the 1st respondent’s letter on the 5th July, 2013 via a letter dated 22nd August, 2013. Again the 1st respondent failed to address the claimant’s issue on Acting Coordinating Director. Also the 1st respondent did not bring the 4th respondent’s letter of 22nd August, 2013 to the notice or knowledge and attention of the claimant but the letter was dumped at the claimant’s resident on the 3rd February, 2014 month after the suit was filed. To the claimant the provisions of the Public Officers Protection Act will only beginning to run against the claimant from 23rd August, 2013 and not 10th July, 2013 has alleged by the applicant. Claimant also contended that the cause of action borders on contract of employment and contracts are not within the categories of matters covered by the provisions of the Public Officers Protection Act. Claimant relied on the case of Oduko V Government Ebonyi State (2004) 13 NWLR (Pt. 891). In conclusion, claimant urged the court to discountenance the application and dismissed same. On his part by Notice of preliminary objection dated and filed on the 4th of February, 2014, the 4th defendant/applicant raised a preliminary objection to the effect that this Honourable Court lacks jurisdiction to entertain this suit as presently constituted. The grounds for the preliminary objection are as follows:- 1. The suit is statute barred and the Honourable Court has no jurisdiction to entertain same. 2. The plaintiff has no reasonable cause of action against the 4th defendant. The 4th defendant therefore seeking an order of this Honourable Court striking out the suit or alternatively dismissing same for been incompetent. In support of the preliminary objection the 4th applicant raised two issues for determination of the court:- 1. Whether the action is not statute barred in view of the provisions of the Public Officers Protection Act. 2. Whether the suit disclosed any reasonable cause of action or any cause of action at all against the 4th defendant. On the 1st issue, whether this suit is not statute barred in view of the provisions of the Public Officers Protection Act. The 4th defendant submitted that the suit is statute barred as it was instituted three months after the alleged cause of action arose. It is the contention of the 4th defendant/applicant that the cause of action is time barred and therefore incompetent thereby robbing this court of the requisite jurisdiction to entertain same. Mr . M. A. D. Ukiri V Federal Civil Service Commission & Anor (2011) All FWLR (Pt. 577) P. 783 Ratio 4. That a closed perusal of the claimant statement of claim will reveal that the cause of action arose some time in July 2013 when the claimant was served with a letter from the Director Human Capital Management and Development to hand over to the most Senior Director in his group by closed of work on Friday 12th , July 2013. The plaintiff filed this suit on the 22nd of November, 2013. That is four months and twelve days against the permissible period of three months under the preliminary objection. He therefore urged the court to hold that the action is statute barred and dismissed same for being incompetent as it was commenced outside the statutory period allowed by law. With regard to the 2nd issue, raised by the 4th defendant which is whether this suit disclosed any reasonable cause of action or any cause of action at all against the 4th defendant. The 4th defendant submitted that the suit discloses no cause of action against the 4th defendant. That a careful perusal of all the averments in the plaintiff’s originating summons does not disclose any wrongful act against the plaintiff by the 4th defendant neither did any of the said averments disclose any damage to the plaintiff cause by the 4th defendant. That where a court finds that a suit discloses no cause of action against the defendant/respondent the has appealed in the case of Bebegi Oil Allied Product Ltd V Pancosta Ltd (2007) 31 WRN 168 at 175 Ratio 12. The court can on the proper application of the party strike out his name from the suit. The 4th applicant therefore, urged this court to dismiss or strike out the name of the 4th defendant as a party to the suit. The claimant responded to the 4th defendant preliminary objection raising two issues for determination of the court which are:- 1. Whether the claimant suit is statute barred having regard to the provisions of the Public Officers Protection Act? 2. Whether the claimant has a cause or reasonable cause of action against the 4th defendant/applicant. In arguing issue 1, which is whether the claimant suit is statute barred having regard to the provisions of the Public Officers Protection Act the claimant submissions on this issue has already been reproduced above and will not be repeated here. The summary of which is that the Public Officers Protection Act cannot apply to defeat the claimant’s action because the effective and final decision from the 1st and 4th defendants and especially the 4th defendant would have distinguished the claimant quest to occupy the office of Coordinating Director Standards and Compliance was not made and if made was not communicated to him. Also in replying the 1st defendant letter of 5th July, 2013 the 4th defendant only confirmed the retirement of the claimant which was not in issue and decline to comment on the subject matter referred to her. That the matter bordering on contracts are also not within the category of matter covered by the provisions of Public Officers Protection Act. The claimant’s argument in respect of the 2 issue, as to whether there is a cause of action against the 4th defendant/applicant is that a careful examination of the claimant’s affidavit in support of the originating summons as well as further affidavit would reveal that the claimant not only has a cause of action in this suit. In that the 4th defendant reacted to the 1st defendant letter dated 22nd August, 2013 confirming the claimant’s retirement but declining and/or neglecting to take a decision and the question of confirmation of the claimant as coordinating Director, which subject matter was forwarded to her. That the refusal of the 4th defendant to affirm and decline the request of the claimant in compliance with the practice and precedent in the service of the 1st defendant denote a cause of action against the 4th defendant. On points of law 1st, 2nd and 5th defendants filed a joint address on points of law in opposition to the claimant’s written address they raise an issue whether this present application does not amount to demurer(sic) arguing that the claimant has completely missed the points and utterly misconstrued the provision in the rules of this court relating to demurrer. That the objection in this suit relates to/or impeaches the jurisdiction of this court to entertain the suit which is fundamentally defective and incurably incompetent. That issues relating to court jurisdiction when raised by the defendant in a suit cannot be regarded as demurrer. That whenever the issue of jurisdiction is raised every other things stop to give the prime position of fearing the jurisdictional issue. Relying on the case of Elebanjo V Dawodu (2006) 6 – 7 SC 24 at 35 – 38, 48 – 54 where the Supreme Court Justice held:- That it is not a requirement of law that a statement of defence must be filed before an objection to the jurisdiction of a court can be taken. They urged the court to discountenance the misconstrued and misconceived arguments of the claimant on this issue and resolve same against him. On the 2 issue, they also submitted on the issue as to whether a final decision has been taken on the question of the claimant’s agitation by any of the defendants to invoke the provision of the Public Officers Protection Act and if a final decision has been reached what is the effective date of that decision for the purposes of the application of the provisions of the Public Officers Protection Act. In arguing this issue they submitted that the claimant has argued that none of the defendant came to a decision in respect of this letter dated 4th April, 2013. That prior to the time of the commencement of his action it cannot be said that the action is time barred by reasons of the provisions of the Public Officers Protection Act. They argued that by the contents of Exhibit D which is a letter written by the 2nd defendant objector and delivered to the claimant on 10th July, 2013 a decision on his request was taken and effectively communicated to him and time begins to run against him on the said date and the provisions of Public Officers Protection Act fixed in. That the claimant appreciated the provisions of the Act when a wrote a letter through his counsel to the 2nd defendant that he will approach a court of law to ask that the letter of 10th July, 2013 be declared null and void and of no effect whatsoever. They also contended that the claimant reliance on Exhibit L a letter from Permanent Secretary of the Federal Ministry of Finance where the claimant contended that he became aware of the letter on the 3rd of February, 2014 goes without saying that there was no cause of action as at November 22nd , 2013 when the suit was instituted. That the claimant misconstrued that the suit was not statute barred and was commenced when the claimant filed and served and the 1st defendant the pre-action notice of his intention to commence action dated 2nd October, 2013. That the pre-action notice is not listed as one of modes of commencing action in this court referring to Order 3 Rule 1 of the National Industrial Court. They also submitted on the issue that Public Officers Protection Act is not applicable to employment cases that this issue has been settled that the Supreme Court in a plethora of cases including but not limited:- 1. Forestry Research Institute of Nigeria V Gold (2007) 11 NWLR (Pt. 1044) p. 1 . 2. Nigerian Broadcasting Commission V Bankole (1972) ALL NLR 331. 3. Ibrahim V Judicial Service Committee Kaduna State (1998) 14 NWLR (Pt. 584) 1. 4. Central Bank of Nigeria Plc V Ukpong (2006) 13 NWLR (Pt. 998). 5. University of Ilorin V Adeniran (2006) 6 NWLR (Pt. 1031) at 498. That the holding of the Court of Appeal represent the prevailing position of the law because their decision enter post or subsequent to the 2004 Judgment relied upon by the claimant’s counsel. They urged the court to resolve the issue in their favour. Finally, issue 3, 4 and 5 were argued together by them submitting on issue 3 that the mere facts that they did not file a counter affidavit disputing the fact contained in the affidavit supporting the originating summons does not make the originating summons non contentious. On whether the claimant has a cause of action but that the cause of action if any is statute barred and rubs the court of jurisdiction. They argued that the 1st defendant is guided by statute and the claimant has no cause of action to institute this claim since he has voluntarily statutorily retired and cannot claim to still be in employment of the 1st defendant when he is no longer a worker. It is trite law that contract of employment between a government or state and an individual is regulated or founded on statute and the legal relationship of the rights and duties between the employer and employee are imposed by the public law and not by mere agreement of parties. See Amasike V Reg. Gen., C.A.C. (2010) 13 NWLR (Pt. 1211) 337; and Gov., Ekiti State V Akinyemi (2011) 17 NWLR (Pt. 1276) 373 at 419 A – C. They urged the court to resolve these issues in favour of the defendants and discountenance the arguments of the claimant. The 3rd defendant reply on the points of law submitted that the claimant submissions that Section 2(a) Public Officers Protection Act is not applicable in contract of employment is unfounded and did in his application of law. That the Supreme Court is allowed the applicability of the Act in the contract of employment referring to the Supreme Court case of Fred Egbe V Hon. Justice Adefaransin. He concluded that the claimant’s action arose on the 10th July, 2013 when he was given a letter asking him to hand over to the most Senior Director because he was up to 60 years of age and the claimant filed this action on the 22nd of November, 2013 which is over 3 months. That by law claimant’s action is statute barred. I have carefully considered the written briefs and the authorities cited by the learned counsel for parties in the suit. The issues for the court to decide are:- 1. Whether the action of the claimant is statute barred. 2. Whether the action of the claimant is not a trade dispute. 3. Whether originating procedure is appropriate to commence this suit. 4. Whether the action of the claimant has disclosed any reasonable action against the 3rd defendant. All the defendants/applicants in this suit raised the issue to the fact that the action of the claimant/respondent in this case is statute barred having being brought more than three months after the accrual of the cause of action contrary to the provision of Section 2(a) of the Public Officers Protection Act. A case or an action is said to be statute barred if it was commenced or initiated after a period of time limited by statute within which it can be brought had expired. It is trite that when a statute prescribes or limits the period of time within which an action or case may be filed by a party in a court of law, any action filed outside or after the time so prescribed had elapsed would be in contravention of the provisions of the statute and the action will be statute barred and lacks the competence to be determined by a court of law. There seems to be no dispute about the fact that the applicants are public officers and the provisions of the Section are applicable to them. In this case the claimant has based his action on this right to continue to hold the position of Acting Coordinating Director of Standards and Compliance Group after retirement. It is not in dispute that the claimant/respondent tendered his letter of retirement from the office of 1st defendant i.e. Federal Inland Revenue Service in May, 2013. In this letter of retirement, the claimant informed the 1st defendant of his retirement from the services of the 1st defendant having attained the mandatory age of sixty (60) years. He then requested that he should be allowed to continue in the office of the Acting Coordinating Director of Standards and Compliance Group which according to the claimant either a serving or retired officer can hold such position. The contention of the claimant is that while the 1st defendant accepted his notice of retirement, it kept quite or mute on his request for confirmation as the Acting Coordinating Director Standards and Compliance Group. The claimant further contended that on the 22nd August, 2013, the 4th defendant responded to the 1st defendant letter of 5th July, 2013 Exhibit K, through a letter Exhibit L, not conceding to his appeal. But that the 1st defendant did not bring the letter Exhibit L to his attention until 3rd February, 2014 after the institution and pendency of this suit. The question then is when does the cause of action arose in this suit? The cause of action, generally accrues on the date on which the incident giving rise to the cause of action occurs. What date must be taken by the court, or accepted by the court as the date when time starts to run. In this case, all the defendants submitted that the cause of action arose on the 10th July, 2013 when the claimant was served with a letter in which the 1st defendant directed him to hand over to the most Senior Director having attained the statutory age of the retirement. The claimant however, argued that time cannot begin to run against him when the issue he is contending is not his voluntary retirement but that his appointment be confirmed as the Coordinating Director of Standards and Compliance group. Claimant contended that decision could not have been taking on the 10th July, 2013, but that made by the 4th defendant a superior officer and supervising head of the 1st defendant on the 22nd August, 2013. The claimant then further argued that by the provisions of Public Officers Protection Act, time only begins to run against the claimant from 23rd August, 2013 and not 10th July, 2013 as alleged by the defendants. To the claimant between 22nd August, 2013 and 22nd November, 2013 when the matter was instituted three months could not have elapsed for the action to be caught by the provisions of Section 2(a) of the Public Officers Protection Act and Section 55 (1) (2) of the 1st defendant’s Act which is in pari materia with Public Officers Protection Act. The claimant further argued that where a statute prescribes that an aggrieved party must exhaust all the remedies prescribed by statute before instituting an action in the court, that until the remedies available in that law are exhausted any resort to court would be premature. Going by the submissions above, It is my view that the cause of action becomes actionable on 10th July, 2013 when the claimant was ordered to hand over to the most senior Director, and he became aware that his position as Acting Director of Standards and Compliance was not mentioned or confirmed. Without going into the merit of this case at this stage it is obvious that the various steps taken by the claimant to get the defendants confirmed his acting appointment should not have prevented him from instituting his action after the failure of the 1st defendant to confirm his acting appointment on 10th July, 2013. The claimant ought to have initiated this action immediately he received his letter of 10th July, 2013 while at the same time waiting for the responses of the defendants, in my view, that was the day the wrong was committed. What happens if the Minister refuses to reply to his letter will he wait forever? The law permits for appeals and negotiations between parties but time begins to run from the date of the accrual of the cause of action. The letter of the Hon. Minister of Finance the 4th defendant has not helped the position of the claimant in that it has only confirmed the position of the 1st defendant urging the claimant to proceed with his retirement from the service of the Government. It follows therefore that the issue of limitation touches on the competence of not only the action but of the court to adjudicate upon matters pending before it. The issue of jurisdiction must be resolved before further steps are taken in the proceeding to determine the merit of the case. The law is that where a court lacks the competence to hear and determine a matter the proceeding will be a nullity no matter how well conducted. It follows therefore, that the claimant action is statute barred. On the 2nd issue which is whether the claimant action is not a trade dispute. What is trade dispute? It has been defined as any dispute between employers and workers or between workers and workers which is connected with the employment or non employment or the terms of employment and physical conditions of work of any person. By virtue of the definition of Trade dispute the following ingredients must be there to make the dispute a trade dispute:- a. There must be a dispute. b. The dispute must involve a trade. c. The dispute must be between: i. Employers and workers or workers and workers. d. The dispute must be connected with the employment or non employment; or ii. The terms of employment and iii. Physical conditions of work of any person. The 1st defendant counsel argued that going by the definition and juxtaposed with the facts of this case, the claimant case cannot be accommodated within the meaning of the exclusive jurisdiction of the court. Counsel referred to the case Osho V Unity Bank Plc which he claimed is on fours with the claimant case that the cause of action is on wrongful termination. Counsel said at the time the claimant he instituted the case the claimant was not a worker and by that there is no trade dispute. The position of the counsel for the 1st, 2nd & 5th defendants that the cause of action of the claimant is on wrongful termination of appointment is not correct. It is on record that the claimant appointment was not terminated by the defendants. Rather he retired from the service of the 1st defendant after obtaining the statutory age of 60 years. His grouse with the defendants as a whole is that after his retirement he should be allowed to continue and have his appointment confirmed as the Coordinating Director of Standards and Compliance group by the defendants the position which can be held by serving or retired officers of the 1st defendant. The defendants did not comment on his request but rather asked him to proceed on his retirement. From above, the claimant claim is not for reinstatement or based on termination of his appointment by the defendants but to be allowed to continue as Director of Standards and Compliance group after his retirement. He was never issued any letter of termination of appointment. The argument of the counsel to the 1st, 2nd & 5th defendants is also not correct as the subject matter of the suit falls within the purview of Section 254 (c) of the 1999 Constitution is amended in Section 7 (1) (a) of the National Industrial Court Act. The issue at hand, is connected with and pertaining to the employment of the claimant. This is a dispute between an employee and his employers. The next issue to be tackled is whether originating summons procedure is appropriate to commence this action. The 1st defendant/applicant has opposed the commencement of this action by the claimant by the originating summons procedure. To the 1st applicant originating summons is only permitted to be used where there are no disputes as to facts or where the issue in controversy borders or touches strictly on interpretation of statute or documents or terms of contract. That Order 5 Rule 5A of Rules of National Industrial Court is that actions in which there are substantial dispute of facts are best suited to be initiated by complaint where parties would be at liberty to file and exchange pleadings and lead evidence during trial. To the 1st defendant the claimant has employed a wrong procedure to commence his action, because of the hostile or possible hostile nature of this proceedings, an originating summons should not be used as in the instance case, the case ought to be struck out. However, the claimant submitted that originating summons is one of the modes of commencing an action before the court. Claimant contended that he is seeking for the interpretation of certain sections of the statute setting up the 1st defendant, and that brings the action of the claimant within the originating summons procedure as stipulated by the Rules of this court. Claimant said even if the procedure adopted in commencing the action is wrong, the law enjoins the court to order that the originating summons be converted to a writ of summons. While the claimant is right submitting that originating summons is one of the modes of commencing action in the court the issue before the court is however, a very contentious one and originating summons is therefore not suitable for commencement of this action. In my view, the issue before the court is not for the interpretation of any statute but one in which the claimant is seeking for confirmation of his acting appointment and continuation in office after his retirement. Whether the claimant can be granted his request is a matter that is arguable, and for this reason the commencement of the action by the originating summons is wrong. Lastly, it is evident that the case of the claimant does not disclosed any reasonable cause of action against the 3rd defendant. Throughout the claimant submission in his reaction against the 3rd defendant preliminary objection there was a single mentioned of the 3rd defendant. The claimant has also not disclosed the wrong done to him by the 3rd defendant. In my view, the 3rd defendant is not a necessary party to the suit as the matter can be effectively and completely settled without the involvement of the 3rd defendant. From the facts of this case and reasons given the action of the claimant is statute barred and this touches on the competence of the court hear the case. Ruling is entered accordingly. _______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE