IN
THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN
THE ABUJA JUDICIAL DIVISION
HOLDEN
IN ABUJA
ON
WEDNESDAY 15TH DAY OF APRIL, 2026
BEFORE
HIS LORDSHIP HON. JUSTICE SINMISOLA O. ADENIYI
SUIT
NO: NICN/ABJ/374/2024
BETWEEN:
MR. AGBIKIMI OGHENENYERHOVWO CONVENTION…………………CLAIMANT
AND
1. NIGERIA ELECTRICITY LIABILITY
MANAGEMENT
LTD/GTE (NELMCO)
2. FEDERAL MINISTRY OF POWER (FMP) DEFENDANTS
3. THE BUREAU OF PUBLIC ENTERPRISES (BPE)
4. THE HEAD OF THE CIVIL SERVICE OF THE FEDERATION
Legal
representations:
Anthony O. Itedjere Esq.,
for Claimant
Simiat Suleiman, Esq.,
for 1st and 2nd Defendants
Eustace Nwaozuzu
Esq., for 1st Defendant
4th
Defendant not represented
R
U L I N G/JUDGEMENT
The Claimant instituted the present
action vide a Complaint and Statement of Facts filed on 17/10/2024, wherein he claims
jointly and severally against the Defendants the following reliefs:
1. A
DECLARATION that by the doctrine of Ex turpi non oritur action, Ex turpi
causa non oritur damnum or ex turpi casua, the letter dated 28th August
2024 with reference FMP/7546/T9/121 by the Ministry of Power seeking to
deliberately deprive the Claimant of his legitimate proper salaries between the
period of his unlawful interdiction, reinstatement and his severance benefits
at disengagement from the services of the Defendants is null and void for all
intent and purports.
2. A
DECLARATION that the Claimant proper Grade Level in 2013 when his severance
benefits was computed is on code SM 1/10 and not code MM3/12 with the defunct
PHCN (which now metamorphosed into the 1st Defendant) by virtue of the Staff
Condition of Service of PHCN and the letters of the Head of Civil of the
Federation and the Ministry of Power directing the proper placement of the
Claimant after his reinstatement into the services of the 1st Defendant.
3. A
DECLARATION that the Claimant is entitled to the shortfall of his Salary during
the period of his unlawful interdiction between September 2002 and January 2004
when his employment with the 1st Defendant was unlawfully determined.
4. A
DECLARATION that the 2nd to .4th Defendants are bound by their respective
recommendations that the Claimant in addition to reinstatement in 2010, the
Claimant should be placed par with his colleagues’ core SM1/10 at the defunct
PHCN and his entitlements be recalculated to meet the justice of the case.
5. A
DECLARATION that the Claimant ought to have been promoted to core SM1/10 in
accordance with the condition of service of the defunct NEPA/PHCN and the Public
Service Rules upon his reinstatement into the services of 1st Defendant and
that the Defendants are under a legal duty to give effect to their respective
directives that the Claimant should be placed par with his colleagues (at the
defunct NEPA/PHCN now 1st Defendant) upon his reinstatement in 2010 and be paid
his full entitlements.
6. A
DECLARATION that by the transfer Instrument, dated 23rd September, 2011,
transferring the then PHCN and her Staff to the 1st Defendant, its employees,
Liabilities, assets, pending litigations, contractual rights, obligations and
proceedings remain valid and binding on the Defendants including the short
falls on salary and other entitlements if any to the Claimant.
7. A
DECLARATION that the complaint/appeal of the Claimant to the Defendants is debt
owe him during the period of his contract of employment with the Defendants and
proper severance benefit at the point of determination of his employment and
same is not subject to Section 2, sub-section 110201 of the Public Service Rules,
2021 Edition more so, the Claimant is not responsible for the failure of the
Ministry of Power to effect his proper placement as well determine/conclude his
appeal within six months and as such the said letter is null, void and of no
legal effects.
8. AN
ORDER of this Honourable Court directing the Defendants jointly and severally
to pay the Claimant the sum of N1,214,680.96 being the short fall from his
salary during the period of his unlawful interdiction between September, 2002
to December, 2003.
9. AN
ORDER of this Honourable Court directing the Defendants jointly and severally
to pay the Claimant the differential sum of N19,098,141.11 only being the
outstanding balance from the salary the Defendants were supposed to have paid
the Claimant upon proper placement in 2010 till his employment was determined
in 2013.
10. An ORDER
of this Honourable Court directing the Defendants to
jointly
and severally pay the Claimant’s balance of his severance benefits the sum of N73,679,555.53
only being the balance between the severance benefit paid by the Defendants to
former employers of the defunct PHCN Staff on CODE MM3/12 and CODE SM 1/10
respectively.
11. The sum
of N5,000,000 (Five Million Naira) only being cost of this suit or such cost as
may be accessed by the Honourable Court.
12. General
Damages in the sum of N10,000,000 (Ten Million Naira) only being Loss and
Damages, caused by the delay in paying the Claimant’s Benefits on CODE SM1/10.
2. The instant Notice of Preliminary Objection filed by the 3rd Defendant on
03/11/2025 is brought pursuant to Section 2(a) of the Public Officer’s
Protection Act (POPA), Section 23 of the Public Enterprises
(Privatization and Commercialization) Act 2004 and under the inherent jurisdiction
of this Honourable Court. The 3rd Defendant prays for an Order of this
Honourable Court to dismiss this suit for being statute barred or alternatively,
for an Order of striking out this suit against the 3rd Defendant. The Objection
is supported by a 4 – paragraph Affidavit and premised on five (5) grounds.
Also filed alongside the Notice of Preliminary objection is the written address
of her counsel.
3. I have proceeded to carefully consider
this application and the facts deposed in the Affidavit filed to support the
same. I had also taken due benefits of the totality of the written and oral
submissions canvassed by the respective counsel in support of the positions
they held. The argument of the counsel for the 3rd Defendant, Eustace
Nwaozuzu Esq, is that the Claimants commenced the present action against
the Defendants, after the time permitted by the POPA (supra), for
filing an action against the acts of a public officer complained of and the
time for instituting a case founded on contract had lapsed. Counsel argued that
the Claimant’s cause of action, which stems from his alleged interdiction and
the termination of his appointment, respectively arose on 17th September, 2002,
and October 2013, became extinguished over 20 years ago.
4. Counsel further argued that the
alleged act by the Defendants was done in pursuance of law, public duty or
authority. Citing the cases of Egbe Vs Adefarasin [1987]
1 NSCC 1; Ekeogu Vs Aliri [1991] 3
NWLR (Pt 179) 258; Ibrahim Vs JSC [1998]
14 NWLR (Pt 584) 1; Yare Vs NSWIC [2013] 12
NWLR (Pt 1367) 173; FMC Ido-Ekiti Vs Alabi [2012] 2 NWLR (Pt 1285) 411; Nwaogwugwu
Vs President, FRN [2007] 1 NWLR (Pt 1010) 71,
counsel submitted that limitation laws protect Defendants from indefinite
threat of litigation and it also prevents the Claimant from litigating stale
claims after undue delay.
5. Counsel further argued that there is
no reasonable cause of action against the 3rd Defendant; that the only reason
the 3rd Defendant was joined to the action is for participating in the
privatization of National Electric Power Authority (NEPA) to Power Holding Company
of Nigeria (PHCN); that the statutory process which occurred many years ago was
conducted by the Bureau of Private Enterprise (BPE) on behalf of the Federal
Government; that the Claimant was employed by NEPA and not the 3rd Defendant
and therefore submitted that the 3rd Defendant cannot be made a party except
the acts of wrongdoing are directly to it. The cases of BPE Vs
Reinsurance Acquisition Group Ltd [2018] LPELE 44573; Chevron Nig Ltd Vs
Lonestar Drilling (Nig) Ltd [2007] 16 NWLR (Pt 1059) 168, were cited in
support of his propositions. Counsel finally urged the Court to hold that the
case is statute barred and it lacked jurisdiction to entertain same.
7.
Now, as correctly submitted by Claimant’s counsel, the suit number stated on
the Notice of Preliminary Objection, the Affidavit in Support and the Written
Address of the 3rd Defendant bear Suit Number: NICN/ABJ/314/2024, which is
different from Suit Number: NICN/ABJ/374/2024 on the Complaint. However, a
process that bears a wrong suit number such as the processes filed by the 3rd
Defendant is considered a mere irregularity as to form and not a fundamental
defect that can vitiate the process, especially in circumstances like the
present case, where the Claimant did not show that he was misled or suffered
any injustice from stating the suit number wrongly. 8. The settled position of
law is that irregularity of proceedings by non-compliance with the Rules of
Court must be shown to materially affect the merit of the case and occasion
miscarriage of justice. See Maja Vs Samouris [2002] FWLR (Pt 98) 818;
Adegbola Vs Idowu [2020] 7 NWLR (Pt 1722) 94. See also Order
5 Rules 1 and 5 of the Rules of this Court, which is in line with the
judicial authorities on this issue. In
the circumstances therefore, stating the wrong suit number on the said
processes by the 3rd Defendant is mere irregularity. The argument of the
Claimant’s counsel on this issue is hereby discountenanced.
9.
The further argument of Claimant’s counsel is that the Affidavit of the 3rd
Defendant contain false, contradictory and misleading material facts. Now, a
piece of evidence will be said to be contradictory to another where it affirms
or asserts the opposite of that other piece of evidence. For two pieces of
evidence to be said to be contradictory, there must be material contradictions
that will go to an issue of fact. The two pieces of evidence must, by their
nature, be patently inconsistent and be mutually repugnant or exclusive of each
other. See Asanya Vs State [1991] 3 NWLR (Pt 180) 422; Zakirai
Vs Mohammed [2017] 17 NWLR (Pt 1594) 181; Shola Vs State [2020]
8 NWLR (Pt 1727) 530.
10.
In Shola Vs State (supra) at Pg 546, paras A - D, the
following clarification was made:
"Contradictory evidence
is that which asserts the opposite and is inconsistent with the other. A
contradictory statement is an affirmation of the contrary of what was
contradictory only where it is the direct opposite of what was earlier asserted. Two
pieces of evidence contradicts one another when they are themselves
inconsistent. A discrepancy may occur when a piece of evidence stops short of,
or contains a little more than what the other evidence says or contains some
minor difference in details."
Contextualizing
the above legal principle, can it then be said that stating 7th October, 2025 as
the date the suit was filed in paragraph 3 (a) of the Affidavit in support, a
contradiction that is substantial? I do not think so.
11.
Where a contradiction is trivial, not affecting the credibility of witnesses,
it is not sufficient to vitiate the case. It appears to me that the Claimant is
merely creating a storm in a teacup. Considering the entire circumstances of
the case, it is on record that the instant case was filed on 17th October,
2024. The important consideration at hand is the date the case was filed to
determine whether or not the action was filed within the three months
prescribed to institute an action against public officers. This is what the
Court ought to be concerned with. The date stated by the Defendant’s counsel
not being material contradiction, the argument of counsel is discountenanced.
12.
I shall proceed to determine the issue challenging the competence of this case
and the jurisdiction of this Court on the ground that the Claimant’s case is statute
barred. The argument of the Claimant’s counsel in reaction is that Section
2(a) Public Officers Protection Act, allows exceptions where there is
continuance of damage or injury; that the actions of the Defendants including
the 3rd Defendant, to promote the Claimant alongside with his colleagues and to
compute and pay his entitlements since his interdiction in 2002, constitutes a
continuing injury that persists until payment is made. Counsel therefore urged
the Court to hold that the Claimant’s case falls within the exception to the
applicability of Section 2 (a) POPA, as sufficient facts has been disclosed by
the Claimant that the action of the Defendants are arbitrary, an abuse of power
and mala fide. The cases of AG Rivers State Vs AG Bayelsa State &
Anor [2013] 3 NWLR (Pt 1340) 123; FGN Vs Zebra Energy Ltd [2002] 18
NWLR (Pt 798) 162; Offoboche Vs Ogoja LGA [2001] 16 NWLR (Pt 739) 458;
Ibrahim Vs JSC, Kaduna State (supra), were cited in support of his
submissions.
13.
On the issue of reasonable cause of action, counsel cited Section 13 and
Section 14 of the Public Enterprises (Privatization and Commercialization) Act
2004 and the cases of BPE Vs Reinsurance Acquisition Group Ltd
[2008] 10 NWLR (Pt 1095) 46; NITEL Plc Vs ICIC (Directory Publishers) Ltd
[2009] 16 NWL (Pt 1167) 36, and argued that being the agency of the Federal
Government having the responsibility of implementing privatization policy there
is a reasonable cause of action against the 3rd Defendant. Counsel further
argued that non-joinder or misjoinder of a necessary party is a procedural
irregularity that does not oust the jurisdiction of the Court. Order 13
Rule 14 (1) of the Rules of this Court and the cases of FMC
Ido-Ekiti & Ors Vs Alabi [2001] LPELR 10931; Cross-Rivers State
Newspaper Corporation Vs Oni & Ors [1995] LPELR 898; Lagos State
Bulk Purchasing Corporation Vs Purification Techniques (Nig) Ltd [2012]
LPELR 20617; Akpan & Ors Vs Julius Berger (Nig) Plc [2002] LPELR 11054
were cited in support of his propositions.
14.
Now, it would seem from the submissions made by respective counsel that they
are not in doubt that the issue of a Court’s jurisdiction is the bed rock of a
case. It is now settled that the issue of jurisdiction is fundamental to the
question of the competence of the Court adjudicating. It is an exhibition of
wisdom to have the issue of jurisdiction or competence determined before
embarking on the hearing and determination of the substantive matter. See Iwuji & Ors Vs Governor of Imo State
& Ors 2012 LPELR 22824; Dangote Gen. Textile Products & Ors Ltd
Vs Hascon Associates Nig Ltd & Anor [2013] LPELR 20665. Suffice it to quickly affirm the
trite position of law that in the determination of the subject-matter or cause
of action, and the competence in a suit; it is the Originating process of the
Claimant that determines the jurisdiction. See Oloruntoba-Oju & Ors Vs Dopamu & Ors [2008] 7 NWLR (Pt
1085) 1 at 23; Oladipo Vs NCSB [2009] 12 NWLR (Pt 1156) 563; NURTW
& Anor Vs RTEAN [2012] LPELR 7840.
15. The story as told by the Claimant is
that he was unlawfully interdicted by the 1st Defendant between 17/09/2002 till
his employment was terminated on 15/01/2004 and that upon appeal, he was
reinstated in 2010. The Claimant grouse is that the Defendants have refused or failed
to pay the balance of his half salary during the period of his interdiction
between September 2002 to January 2004. The Claimant further contends that
after his reinstatement in 2010, the Defendants failed to place him in his
proper position with his colleagues, and they also failed to compute and pay
his full entitlements and severance benefits. It was based on the above stated
facts, that this action was instituted against the Defendants.
16. The simple and narrow question to be
determined in the present application is whether the provision of Section 2 of POPA (supra) and
Limitation Law (supra) are applicable to the facts of the instant case, to oust
the jurisdiction of this Court for being statute-barred and liable to be
dismissed. The 3rd Defendant’s counsel had contended that the Claimant’s suit
was statute-barred, having been instituted beyond the three-month limitation
period prescribed by the Act and/or the six years limitation period of the Law.
Conversely, the Claimant submitted that the suit falls within the exception of
instituting an action as provided by the POPA, the alleged injury or damage
caused by the Defendants having being continuous.
17. The intendment of the doctrine
governing the calculation of the limitation period, as encapsulated in Section
2(a) of POPA, is to preserve the orderly administration of justice and the law
on the limitation period for bringing an action against a public officer is
settled beyond doubt by a plethora of judicial authorities. The general position of the
law is that time begins to run for the purposes of
the limitation law from the date the cause of action accrues. See Ajayi
Vs Adebiyi [2012] 11 NWLR (Pt 1310)
137; Sulgrave Holdings Inc, Vs FGN [2012] 17 NWLR (Pt 1329) 309.
18. In the famous decision of Thomas Vs Olufosoye [1985] 3 NWLR (Pt
13) 523, a cause of action is said to arise and accrue to the person
entitled to it when the fact or all the facts are complete which entitle a person
to a remedy against another if proved. As gleaned from the Statement of Facts, the
Claimant was interdicted and paid half salary by the1st Defendant from 17th
September, 2002 till his employment was terminated on 15th January, 2004.
However, he was later reinstated in 2010. The Claimant alleged that after his
reinstatement, the 1st Defendant failed to pay the balance of his half salary
during the period of his interdiction between 2002 to January 2004; that he was
not paid transfer allowance from Aba, Abia State to Abuja and that the 1st
Defendant failed to place him in the same position with his colleagues after
his reinstatement.
20. It is crystal clear that the cause of
action arose after the Claimant’s reinstatement in 2010, when he became aware
of the action allegedly committed by the Defendants and the suit was not instituted
until 17/10/2024. The exception of Section 2 (a) on continuance of action does
not avail the Claimant. The provision of Section 2(a) of POPA, provides that no
action, prosecution, or proceeding shall lie or be instituted against any
person for any act done in pursuance or execution of any law or public duty
unless it is commenced within three months from the date on which such cause of
action accrued. The right of the Claimant to challenge the action of the Defendants
became extinguished the moment he neglected to challenge the said
action of the Defendants within three (3)
months as stipulated by Law. In other words, this action is indeed
statute-barred. And I so hold.
21. The provision of Section 2 of the Act, in focus
in the instant case, has been given interpretation in a long line of decided
cases that are notoriously recondite on the question of the applicability of
the POPA to employment contracts. This is because of the
rapidity of the conflicting decisions emanating from the superior courts of
records of this country on the issue. Counsel for respective parties have
elaborately furnished some of these decisions.
22. The most recent decision of the
Supreme Court on the vexed issue of the applicability of POPA and Limitation
Law is the case of Okoronkwo Vs INEC [2025] 8 NWLR (Pt 1991) 131.
In that case, it was held that Section 2(a) of the Public Officers Protection
Act (supra) applies to contract of service, as in the instant case, thereby
entitling the Defendants to exercise their statutory right and duty. The
doctrine of judicial precedent otherwise known as Stare Decisis is not alien to
our jurisprudence. It is a well settled principle of judicial policy which must
be strictly adhered to by all lower Courts. While such lower Courts may depart
from their own decisions reached per in curiam, they cannot refuse to be bound
by decisions of higher Courts even if those decisions were reached per in
curiam. The implication is that a lower Court is bound by the decision of a higher
Court even where that decision was given erroneously. See CBN Vs Okojie
[2015] 14 NWLR (Pt 1479) 263.
23. In Atolagbe Vs Awuni [1997]
9 NWLR (Pt 522) 536 at 564, Uwais CJN (as he
then was)
stated
thus:
“It is now well settled
that under the common law doctrine of precedent or stare
decisis the
decision of a higher Court may be criticized by the Judge of the lower Court
but notwithstanding the criticism the Judge of the lower Court is bound to
follow and apply such decision in the case before him. He has no right to
disregard the decision or side-track it.”
This principle was recently restated by
the Apex Court in Wema Bank Plc Vs Awotunde [2025] 18 NWLR (Pt 2017)
273.
24. Limitation
of action principle is both statutory and equitable rule of law
applicable
in international and national laws. One of the principles of the statutes of
limitation is that a person who sleeps on his right should not be assisted by
the Courts in an action for his claims. A person who is aware of his
rights but allows them to go stale should not be allowed to revive the said
stale action to the detriment of an adversary. It applies to make claim(s)
inadmissible if a party waits for an unreasonable period to bring the claim,
thereby prejudicing the Defendant’s ability to defend. It is similar to the
equitable principle that equity aids the vigilant and not the indolent and it
prevents a party from acting unconscionably. See Nwadiaro Vs Shell Petroleum
Development Company Ltd [1990]
NWLR (Pt 150) 322.
25. In Merchantile Bank (Nig) Ltd Vs Feteco [1998] 3 NWLR (Pt 540) 143 at 156, Tobi, JCA (as he then was) opined:
"A statute of limitation is designed to stop or
avoid situations where a plaintiff can commence an action anytime, he feels
like doing so, even when human memory would have normally faded and therefore
failed. Putting it in another language, by the statute of limitation, a
plaintiff has not the freedom of the air to sleep or slumber and wake up at his
own time to commence an action against a defendant. The different statutes of
limitation which are essentially founded on the principles of equity and fair
play will not avail such a sleeping or slumbering plaintiff...."
26. On the
basis of the foregoing analysis and based on the principle of stare decisis by
which this Court is bound, the decision I have arrived at is that the filing of
the Complaint fourteen (14) years after the act complained of, clearly offends
Section 2 (a) of the Public Officers Act. I find in the result that this Court
lacks jurisdiction to entertain this suit. The same shall be and is accordingly
dismissed. Parties shall bear their respective costs.
Ruling is
hereby entered accordingly.
SINMISOLA O. ADENIYI
(Hon. Judge)
15/04/2026