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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: May 19, 2015 SUIT NO. NICN/PHC/10/2013 Between: Engr. Jovinus Ignatius Onwuji - Claimant/Respondent And Federal Polytechnic, Nekede - Defendants/Applicants Representation: E. N. Ichie for the Claimant/Respondent C. H. Azuine (Mrs.) for the Defendants/Applicants. RULING This action was commenced on the 18th day of February, 2013. By a further amended Statement of Facts filed on the 3rd day of December 2014, the Claimant claims against the defendant as follows: 1. A Declaration that the Federal Circular No. HME/FME/216/VOL.1/18 of 21st November, 2000 signed by the Honourable Minister of Education is Applicable to the Claimant in his retirement from the Federal Polytechnic Nekede. 2. A declaration that the Claimant’s retirement date is 26th August 2006 as contained in the defendant’s letter dated 10th February 2006 to that effect and not 26th August 2001. 3. An order of Court on the defendant to readjust the retirement benefits due and payable to the claimant to the appropriate figures as follows: Gratuity: N4,950,535.27 (Four Million, Nine Hundred and Fifty Thousand, Five Hundred and Thirty-Five Naira, Twenty-Seven Kobo) Annual up to October, 2011. Pension: N1,342,503.04 (One Million, Three Hundred and Forty-Two Thousand, Five Hundred and Three Naira, Four Kobo) i.e. N111,875.25 per month, form September, 2006 to December, 2007. 4. A declaration that the claimant is entitled to all pension adjustments due and payable to a retired Chief Lecturer which has occurred since August, 2006 till date in the calculation of the Claimant’s payable pension. 5. A declaration that the Claimant’s monthly pension is N135,648.44 and not N74, 467.30 from January, 2008 when the pension adjustment took effect. 6. An order of Court on the defendant to pay to the Claimant the total sum of unpaid retirement benefit amounting to N4,950,535.27 (Gratuity) + N4,539, 222.78 (Pension) totalling N9,489,758.05 7. Five Hundred and Eighty Thousand, Four Hundred and Sixty-One Naira, Thirty-Six Kobo (N580, 461.36) being award after verification exercise at Alvan Ikoku College of Education withheld by the defendant”. By a notice of preliminary objection brought under the inherent jurisdiction of this court, the defendant/applicant prays the court for an order striking out this suit for want of jurisdiction, The grounds upon which relief is sought are: 1. This suit is statute – barred and the honourable court therefore lacks jurisdiction to entertain same. 2. The cause of action in this matter arose in August 2006 as stated by the Claimant in several paragraphs of his deposition. 3. The Claimant instituted this suit on 18/2/2013 several years and months after the expiration of the three (3) months period as stipulated by the Public Officers Protection Act Cap. P.41 Laws of the Federation 2004. 4. That the issue of jurisdiction was raised in paragraph 1 of the Defendants Statement of Defence. The application is supported by a 4 paragraph affidavit deposed to by Kalu Uduma on which counsel placed reliance. In his accompanying written address a single issue was raised for determination to wit: Whether this suit is statute barred having regard to the provisions of section 2(a) of the Public Officers’ Protection Act CAP P41 Laws of Federation of Nigeria 2004. Section 2(a) of the Public Officers’ Protection Act provides that: any action, prosecution or proceeding commenced against any person for any act done in pursuance or execution or intended execution of any Act, Law of any Public Duty or authority shall be brought within three months of the Act, neglect or default complained of or in the case of a continuing damage or injury, within three (3) months next after the ceasing thereof. Also, Section 18 (1) of the Interpretation Act, 1994 defines a Public Officer as a member of the Public Service of the Federation or of a State within the meaning of the Constitution of the Federal Republic of Nigeria, 1999. See ABUBAKAR vs. GOVERNOR OF GOMBE STATE (2002) 17 NWLR (pt.797) 533 CA. Flowing from the above, it is clearly obvious according to counsel, that the Defendant is a Public Officer to whom the provision of Section 2(a) Of the Public Officers’ Protection Act applies. Counsel submitted that recourse must be had to the Statement of Claim and the Claimants Written Deposition dated 3/12/2014 to determine when the cause of action in this suit arose, because a cause of action generally accrues on the date on which the incident giving rise to the cause of action arose. In the instant case, Paragraphs 6, 8, 9, 10, 14, 15, 16, 19, 20, 25 and 26 of the Claimant’s Statement of Claim stated that he was retired in 2006 and it flows that his cause of action arose in August, 2006. The claims in this suit arose from the said retirement of the Claimant in 2006. From the above, it is clear that the cause of action in this suit arose since 2006. It is the contention of Counsel, citing Section 2 of Public Officers’ protection Act Cap P. 41 Laws of the Federation 2004 that the Claimant brought this action in February, 2013 more than Seven (7) years after the cause of action arose and therefore, his action is outside the time set for bringing an action such as this. This is imperative in the light of the Supreme Court’s decision in IBRAHIM vs. J.S.C. (1998) 14 NWLR (Pt. 584) where the term “Public Officer” was to include an artificial person, a Public Office, Public Bodies or persons etc. particularly per Iguh J.S.C. who held thus: “It is thus clear to me that the term Public Officer has by law been extended to include a Public department and therefore an artificial person, a public Office or a Public Body............I do not think it can be suggested with any degree of seriousness that the Public Officer’s (Protection Act)........while it protects Public Officers cannot on the same wise protect a Public Department an artificial person or a Public body, so long as they sued for an act done in the execution of their Public duties.......... ” Similarly the Court of Appeal has held in NWAOGWUGWU vs. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA thus- “The words any person in Section 2 of the Public Officer’s Protection Act Cap 379 Laws of Federation of Nigeria 1990 are not limited to human beings or to persons sued in their personal names but also includes artificial persons-Public bodies or persons, corporate or incorporate, statutory bodies or person ”. Counsel submitted that the Defendant in this suit falls under the ambit of the Public Officers’ Protection Act because it acted within the confines of its Public authority and duties. Thus, the claimant’s failure in commencing this matter after the three (3) months period as provided by the Public Officers Protection Act makes the instant suit statute barred, divesting the court of the jurisdiction to entertain same. Counsel urged the court to make an order of dismissal in light of the forgoing circumstance. See HASSAN vs. ALIYU (2010) 17 NWLR (Pt. 1223) 547 at 621 where it was held that: “Where a law provides for the bringing of an action in respect of a cause of action accruing to a plaintiff within a prescribed period, proceedings shall not be brought after the time prescribed in the law. Consequently any action brought in respect of the cause of action outside the prescribed period offends against the provisions and does not give rise to a cause of action”. In ADIGUN vs. AYINDE & ORS (1993) 8 NWLR (Pt. 313) Pg. 516 at 536 Paras C-E or Pg. 534 paras A-B, it was held that- “The defence provided in S. 2(a) of the Public Offices Protection Act is that actions caught by the Provision must be commenced within three (3) months next after the cause of action arose. Thus an action for any act done in pursuance of or in execution of any Public duty, alleging neglect or default which is not brought against a Public Officer within three (3) months of the Accrual of the cause of action shall not lie as the Court will lack the requisite jurisdiction”. The Defendant/Applicant urged the Court in addition to the above cited cases to refer to the unreported cases of this Court delivered by Hon. Justice O. Y. Anuwe on 10/2/2015 in Suit Nos. NIC/EN/92/2012: OGUGUO SYLVALINE & 42 ORS vs. GOVERNOR OF IMO STATE & 3 ORS. Also NIC/OW/06/2014: DR. ETHELBERT ANYANWU vs. GOVERNOR OF IMO STATE & 4 ORS, wherein the Court held that the matters were brought after the three (3) months period as provided by the Public Officers Protection Act and thus dismissed for want of jurisdiction. Counsel urged the court to hold that the instant suit is statute barred and strike out same for being incompetent and for want of jurisdiction with substantial cost awarded against the claimant. Responding to the preliminary objection of the defendants the Claimant filed a Counter Affidavit of 8 paragraphs and a written address expressing arguments in opposition of the preliminary objection. The counter affidavit was deposed to by Kelechi O. Ahamba. Counsel, in his argument in the written address filed alongside the counter affidavit, submitted that in the determination of whether an action is statute barred, it is the pleadings of the Claimant that must be considered. In the instant case, the Claimant’s Statement of claim is replete with facts of his unpaid pension and gratuity. Counsel submitted that Section 2 of Public Officers Protection Act referred to by the defendant/applicant does not apply in cases of recovery of land, breach of contract, or claims for work and labour done. See the case of OSUN STATE GOVT vs. DALAMI (NIG) LTD (2007) 9 NWLR (Pt. 1038) 66 at Pg. 83-84, Paras F-E, 84, 100. Paras E-F. See also N.P.A. vs. CONSTRUZIONI GENERALI F.C.S & ANOR (1974) N.S.C.C. VOL 9 Pg. 622 @ 630, Para 50. In line with the above position of the Supreme Court and the unreported case of Kingsley Iheanacho Enyinnya vs. Nigeria Police Council and Ors Suit No. NICN/OW/13/2014, delivered by this court on 17/2/14, Counsel urged the court to hold that pension and gratuity are not contemplated in the Public Officers Protection Act, and to also discountenance all the arguments proffered by the applicant and dismiss the application as unmeritorious and award substantial cost against the applicant. In reaction to the claimant/respondent’s argument, the defendant/applicant filed a reply on points of law, in which counsel contended that the argument of Claimant’s counsel that the Public Officers Protection Acts does not apply to payment for work and labour done and in contract of employment matters is an error in law. This contention is premised on the fact that the Claimant’s Counsel based his argument on the decision of the Supreme Court delivered on 2nd March, 2007 without adverting his mind to the more recent decisions of the Supreme Court delivered on the same issue but on different/adverse view in May and July, 2007 in the cases of See BAKARE vs. NRC (2007) 17 NWLR (Pt. 1064) and FRN vs. GOLD (2007) 11 NWLR (Pt. 1044). In accordance with claimant/respondent’s submission that the instant suit is premised on the payment of pension and gratuity, Counsel submits that the claimant’s cause of action is re-adjustment of his retirement benefits and pension adjustment with the reason that the Bursar of the Defendant back-dated his time of retirement as such he was retired under a wrong level of HATISS 13 Step 9 instead of HATISS 14 step 9. However, it is counsel’s argument the suit of the Claimants is founded on his contract of employment with the defendant, in line with the existence of the contract of employment, the Claimant was retired as at when due in level HATISS 13 step 9 and all his retirement benefits, gratuity and pension has been paid to him and he still receives his pension till date. The re-adjustment of retirement benefits and pension adjustment are not within the exceptions/limitations to the provisions of Section 2 of the Public Officers Protection Act. The Claimant can only be entitled to re-adjustment of his pension if the Court automatically promotes him to level HATISS 14 Step 9 which in counsel’s submission is not within the powers of the Court to do because the Court does not have the right to promote the Claimant to his claimed level. It is the sole duty of the Defendant to effect promotion depending on fulfilment of some conditions. Furthermore, counsel contends that the scope of the provisions of Section 2(a) of the Public Officers Protection Act relates and applies to any action against Public Officers for activities or acts done or in respect of neglect of default in the execution of their duties. This contention finds support in the Supreme Court decision in ADIGUN vs. AYINDE (1993) 8 NWLR (Pt. 313) 516 when the apex Court held per Karibi-Whyte JSC at page 533 thus: “Applying the literal rule of statutory construction, the section applies to “any action” against a Public Officer or authority, without execution as to who or in respect of who the action was instituted. The phrase any action must be given its natural and ordinary meaning. See TORIOLA v. WILLIAMS (1989) 7 SC 27. The section relates to and unequivocally refers to actions against Public Officers and authorities for injury/damage caused in the execution of duty.......” In respect of actions founded on contracts of service of employment as in the instant case, Counsel argues that Section 2(a) Public Officers’ Protection Act applies. He referred to the authorities of: 1. NBC v. BANKOLE (1972) 1 ALL NLR (pt.1) 327 2. FORESTRY RESEARCH INSTITUTE OF NIGERIA v. GOLD (2007) 111 NWLR (Pt. 1044)1, 3. BAKARE v NRC (2007) 17 NWLR (pt. 1064) 060, 4. NBC v BANKOLE (SUPRA). Counsel submits that the cases mentioned above were delivered later in time after the cases cited by the Plaintiff’s Counsel to wit: 1. OSUN STATE v. DALAMI NIG. LTD. 2. TAJUDEEN v. CIPSB (2010) 4 NWLR (Pt. 1184) 325, 3. MUSA v. NIMR (2010) 11 NWLR (pt. 1205) 271, 4. NIGER CARE DEV. CO. LTD. v. ADAMWAWA STATE WATER BOARD (2008) 5 CLRN 1 & 5. NNONYE v. ANYIAHIE (2005) 1 SCNJ 306. The submission of counsel is that the Public Officers’ Protection Act applies in the instant case, therefore if the date on the originating process/writ is beyond the period allowed by the limitation law, the action is statute barred. See 1. EGBE vs. ADEFARASIN (1989) 1 NWLR (Pt. 47) 1, 2. ODUBEKO vs. FOWLER (1993) 7 NWLR (Pt. 308) 637. In the instant case the facts on the originating processes sufficiently disclose when the Plaintiff’s cause of action, if any, arises from his service to the Defendant. A comparison of the date the cause of action accrued and the date the writ was filed shows that the writ was filed more than three months after the accrual of the cause of action, and this is not within the time mandatorily stipulated by Section 2(a) if the Public Officers Protection Act. The action is therefore statute barred. See ADIGUN vs. AYINDE (Supra). Counsel submitted that when an action is statute-barred (as in the instant case), the Plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation had lapsed. The action cannot be validly instituted or maintained after the expiration of the prescribed period. Any such action instituted must be struck out as not being properly before the Court. See 1. EGBE vs. ADEFARASIN (Supra); 2. ODUBEKO vs. FOWLER (Supra); 3. ADEOSUN vs. JIBESIN (2001) 11 NWLR (Pt. 724) 290; 4. IBRAHIM vs. JSC KADUNA STATE (1998) 14 NWLR (Pt. 584) 1; 5. EBOIGBE vs. NNPC (1994) 5 NWLR (Pt. 347) 649. By reason of the foregoing argument, counsel urged the Court to hold that the claimant/respondent’s action which was filed outside the period prescribed by the Public Officers Protection Act is statute-barred, and in the circumstance, he has lost the right to enforce the cause of action by judicial process. He urged the Court to uphold the Defendant/applicant’s objection and strike out and dismiss this suit. Having considered this application, the affidavit evidence and the submissions of counsel to the parties in their respective written addresses for and against the application, the issue that has come up for determination is whether the claimant’s suit is statute barred. The defendant has prayed this court to strike out the suit for want of jurisdiction on the ground that the suit is statute barred. In the affidavit in support of the application, the facts are deposed that the defendant is a public officer and the claimant has 3 months from the date of accrual of the cause of action to file this suit against the defendant. It was deposed further that the cause of action arose in August 2006 but the claimant filed this action on 18/2/2013. The claimant contended that the suit is statute barred. In the claimant’s counter affidavit, the claimant averred that the claimant’s claims against the defendant are for his unpaid pension and gratuity which claims are not affected by the operation of the Public Officers’ Protection Act. Section 2 (a) of the Public Officers’ Protection Act is to the effect that an action against a public officer in respect of any act done in pursuance or execution of any Act or law or of public duty or any default in respect same must be commenced within 3 months from the accrual of the cause of action except in the case of continuance of the damage or injury in which the complainant must institute the action within 3 months after the cessation of the damage or injury. Where the suit is not commenced within 3 months from the date of the cause of action, the action will be statute barred. See IBRAHIM vs. JSC KADUNA STATE (1998) 14 NWLR (Pt. 584) 1 at 36; EGBE vs. ALHAJI (1990) 1 NWLR (Pt. 128) 599; NTUKS vs. N.P.A (2007) 13 NWLR (Pt. 1051) 392. In this application, the claimant did not dispute the defendant’s contention that the defendant is a public officer. The claimant did not also dispute the fact that this suit was filed more than 3 months from the date the cause of action arose. I need not go into those issues again as they are deemed established. If considered from these established facts, it would appear that the claimant’s suit is statute barred. But the matter does not end there. There is the argument of the claimant’s counsel that the Public Officers’ Protection Act does not apply to claims for labour or work done, which category the claimant’s claims have fallen. The claims sought by the claimant in this suit have been set out in this ruling. The reliefs are sought consequent on the act of the Bursar of the defendant done in August 2006 wherein the retirement date of the claimant was reduced. The claimant has alleged in the further amended statement of claim that the Bursar’s act had led to loss of the retirement benefits, gratuity and pension he claims in this suit. See paragraphs 12, 14, 16, 22, 26, 27, 28 and 29 of the claimant’s statement of claim. Therefore, the cause of action of the claimant’s suit arose in August 2006 when the Bursar reduced the claimant’s retirement age and backdated the claimant’s retirement date. From the facts of the claimant’s case and the reliefs sought by him, it is clear that his case is a claim bothering on gratuity and pension. Section 173 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides- “(1) Subject to the provisions of this Constitution, the right of a person in the public service of the Federation to receive pension or gratuity shall be regulated by law. (2) Any benefit to which a person is entitled in accordance with or under such law as is referred to in subsection (1) of this section, shall not be withheld or altered to his disadvantage except to such extent as is permissible under any law, including the Code of Conduct” The above provision is in respect of Federal Public Service. There is also Section 210 of the Constitution which is in respect of public service of the states. The provisions of the two sections are the same and they are very clear. The provision is to the effect that gratuity and pension of public servants shall not be withheld or altered under any circumstance unless there is a law which so permits. Section 2 of the Public Officers’ Protection Act is not such a law regulating pension or gratuity. The Act does not come within the permissible laws in Section 173 of the Constitution. The application of the Public Officers’ Protection Act to this suit will amount to withholding or altering the claimant’s pension and gratuity in a manner not permitted by the Constitution. While considering the effect of Section 210 of the Constitution, which is similar to Section 173 the constitution, on Section 2 of the Public Officers Protection Law of Kwara State, which is also the same provision as Section 2 of POPA, the Court of Appeal in POPOOLA vs. ATTORNEY GENERAL, KWARA STATE (2011) All FWLR (Pt. 604) 175 at 190, held as follows- “The 1999 Constitution vide Section 210 is to the effect that pension or gratuity shall never be withheld under any guise or condition that is not clearly stipulated. From the forgoing, it will therefore be wrong to dismiss the action leading to this appeal on the ground that the court does not have jurisdiction pursuant to the dictates of Section 2 of the Public Officers Protection Law of Kwara State 1994 …In view of the above, issue one is resolved in favour of the appellants against the respondents to the extent that Section 2 of Public Officers Protection Law of Kwara State 1994 is not applicable as it is in confrontation of the 1999 constitution which provides that citizen’s pension and gratuity shall not be withheld under any law.” Therefore, in view of Section 173 of the Constitution and the principle of law as pronounced in the POPOOLA case, the provision of Section 2 of the Public Officers’ Protection Act will not be applicable to the claims of the claimant. The Court of Appeal in the Popoola case held that Section 210 of the Constitution is to the effect that pension or gratuity shall never be withheld under any guise or condition that is not clearly stipulated. The court indeed went further in the Popoola case to remark that “it is inhuman and wicked for a retiree or pensioner to be denied his pension and gratuity when he ought to enjoying the fruit of his labour”. The claimant’s counsel have commended to me a ruling I delivered on 17/2/2014 in suit NICN/OW/13/2014 where I held that POPA does not apply to claims for pension and gratuity. My opinion in that ruling is and remains the position of the law on the matter. To my mind, this issue is settled and this case being one that relates to pension, ought not to be caught up by statute, as that would amount to depriving the Claimant of his constitutional right to his pension, and I so hold. In conclusion, it is my view that section 2 of the Public Officers’ Protection Act does not apply to this suit. The claimant’s suit is not statute barred. The Notice of Preliminary Objection is hereby dismissed. This suit is part-heard. It will therefore proceed for continuation of hearing. Parties are to bear their costs. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge